GOING BACK TO SQUARE ONE: SC shows red signal to Gay rights

Aastha Mehta

In a thought-provoking judgment on Wednesday, Supreme Court of India describes homosexuals as “miniscule fraction” of the population, a term which has not gone too well with those who have been fighting to get a voice in the mainstream, starting from agencies working for Gay rights to NGOs, and the all those who were directly involved with the outcome of the case.

The court has made certain observations which has shown how section 377 of IPC is constitutional, washing away the wave of hope which had come into the homosexual community by  the earlier Delhi judgment which gave gays and lesbians an opportunity, by declaring section 377 of IPC as unconstitutional to Article 14 and 21 of the Indian Constitution. The earlier judgment was a step in the positive direction for the LGBT community, since it declared Section 377 as unconstitutional, thereby allowing the much-sidelined, tortured and depressed community to be able to stand up at par with the privileged class. But the recent decision has been a blow to the tolerant and liberal approach taken by the High Court of Delhi, bringing India again on the threshold of insensitivity, anguish and suffering of this community.


The earlier judgment which legitimized the LGBT sexual rights rejected the arguments laid down in the affividavit of Ministry of Home Affairs (MHA) which showed antiduvilian an anarchical thought process by justifying the retention of Section 377 by writing that deletion of the provision will increase delinquent behavior and will give unfetter license to the homosexuality (page 11 of Delhi Judgment). They also derogate sexuality as a disease, which needs to be curbed. Though the Supreme Court does not approve such an extreme stance taken in the earlier affividavit, nevertheless, it views homosexuality as a non-conforming behavior making, since the supreme court judgment does not rebuke the Home Ministry for morally-discouraging point of view, nor does it show its own opinion on the subject, making the judgment based on how Section 377 does not come in the way of fundamental rights.

HC can be considered as a pioneer for enlarging Article 21 to even include within its meaning, to retain one’s core identity, and projects right to privacy, dignity and autonomy important constituents of fruitful human life. It would be pertinent to quote the judgment wherein it say “Section 377 IPC denies a person’s dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Indian Constitution”. Somersault has been the path which the apex court has conveniently taken, to avoid being a moral custodian an strictly dealing with the legal aspects of such an issue. Supreme court judgment has been singularly focused on whether it can strike down this provision which has been more than 100 year old, on the basis of some NGO reports, public-spirited individuals, and on the precedential value of foreign judgments wherein homosexuality has been accepted.

Appreciable is one very emotional and academic point which the High court has addressed, which unfortunately has not even been given a passing mention by the recent judgment. On the basis of commendable and reliable authorities, High Curt quoted Dr.Ambedkar’s words as reproduced in the book of Granville Austin “Indian Constitution: Cornerstone of a Nation” as follows “popular morality or public disapproval of certain acts is not a valid justification for restriction of fundamental rights under Article 21.” Elaborating further whether the public opinion of dejection and hatred for homosexuals should form a base for trampling rights of this community it said “Moral indignation, howsoever strong, is not a valid basis for overriding individual’s 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.” Such a stand would have been more welcome if it came from the apex court, which would have meant freedom from subjection and access to health care facilities especially for HIV/AIDS for this LGBT population.

Summarily the apex court avoided the question whether is it within the realm of state interest to criminalize homosexual conduct, which was tactfully not ventured into at all, by placing reliance on the case of Gobind v. State of Madhya Pradesh (1975) 2SCC 148 which in ratio decidendi laid that right to privacy is not an absolute right, although while quoting the judgment in verbatim, it also points out the obiter dictum which is one possibility which even the supreme court relied upon which is as follows, “ the question whether enforcement of morality is state interest sufficient to justify the infringement of fundamental privacy right need not be considered for the purpose of this case and therefore we refuse to enter the controversial thicket whether enforcement of morality is function of state”. (as held in Gobind case).


The decision fails to account for the plights of the this ignored community, which was the major argument used by counsels of the Respondents, and has gone into detail how Section 377 of IPC should be interpreted, in the light of constitutional provisions. One very important aspect of this decision is that court has used technical doctrines in interpreting the words of Section 377 by going to discuss doctrine of severability, interpretation of vague statues etc. and has finally come to the conclusion on the support of various decisions that possibility of abuse by authorities will not render a provision or an Act as unconstitutional. This has been laid down as an answer to the arguments of Respondents, when they went on to highlight how the police authorities have been arbitrarily using section 377 as a tool to harass homosexuals, and treating them at par with deviants and criminals. To quote the decision the court said “In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not reflection of the vires of the section.”

The judgment leaves us with a debate by saying that Legislature can definitely look into the desirability of amending this section, however it seems too early for the judiciary to take a stand on it by way of this judgment. It has also relied on Padma Sundara Rao (dead) and Ors v. State of Tamil Nadu an Ors. [2002] 255ITR 147 (SC) by saying that if a provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. This shows how under the garb of various legal strict doctrines, court has virtually closed the doors for homosexual rights, keeping it on the whims and fancies of Parliament to decide on the fate of Section 377 of IPC.

With regard to what Section 377 of IPC intends, Supreme Court has laid down that Section 377 would apply irrespective age and consent, and further goes on to say that Section 377 does not criminalize a particular people or identity or orientation, and merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation. (Page.77 of judgment) However, it seems surprisingly contradictory since on the same page of the judgment, the court admits the fact that there is no uniform test which can be culled out of to classify the acts as “carnal intercourse against the order of nature” which are the precisely the words used in the section 377, which makes the statement that this section regulates the sexual conduct very weak, and even to some extent very illogical. When the bench itself has said that the interpretation of these words is difficult, it seems highly unlikely for the lowers courts to have guidance to what would constitute an act of “carnal intercourse” under this section. It leaves good amount of scope for interpretation for other lower courts, and at the same time for conflicting decisions also.

Lack of particulars and factual matrix by the Respondents has also been a major issue at which the court has turned the decision against their favor. Court has held that Respondents have failed miserably to furnish particular incidents of the torture or alleged discrimination meted out by the agencies or people in general towards the homosexuals, and indirectly has supported the arguments of the appellants (Page 21) that there is a dearth of tangible material on record for the Respondents to attack on the constitutionality of the provision. The reports and the affividavits which were placed before the court were thought to be too less and also “academic” for being considered as strong support for declaring the provisions as void. Therefore bench exercised “self restraint” and where guided by the presumption of constitutionality in the favor of the statute.

Dealing with the question which is of uttermost importance here is, whether Section 377 of IPC and Article 14 of the Constitution are in conflict, the court relied on landmark judgments which have given the true essence of this fundamental freedom, and has laid down that Article 14 is nowhere violated by Section 377. The contention of Respondents was that section 377 arbitrarily differentiates between heterosexual acts and homosexuals acts, without any rationality. It also was argued by them that homosexuality shouldn’t be seen as threat to morality or as criminal behavior. Court gave the reason that those who fall under the ambit of Section 377 cannot cliam that Section 377 is irrational, primary reason being that Section 377 merely defines he offence and prescribes punishment and does not discriminate by the wording of the statute against the homosexuals.

Court also discussed the right to privacy under Article 21 which was also resorted to show that this community’s personal choices and liberty have been compromised with, leaving them into the annals of depression and sidelining them from mainstream life. In stark contrast, the court heavily relied on cases which showed that right to privacy is not an absolute right and can be lawfully taken for prevention of crime or disorder or protection of health or morals or protection of rights and freedom of others [Mr.X v. Hospital Z, (1998) 8 SCC 296]. Subtle underlying point is that even the judiciary sees that such behavior might be affecting the majoritarian view of morality and has the potential to shake the roots of marriage as an institution.

Therefore the court has applied an interpretation which burdens the Parliament to “make or break history” and has crafted the judgment in such a manner that it focuses a lot on technicalities and little on the real sorrows of these people, who have suffered tremendously. Apex court has also turned a blind eye on the international principles of Yogyakarta which were used to justify homosexuality by Delhi High Court, and has stuck to the well-treaded beliefs, largely wrong about    LGBT community. Pondering upon the title of the article, I guess apex court has gone to the 42nd Law Commission Report which gave suggestion for retention of Section 377, primarily on the basis of the societal disapproval for such “queer” behavior as some put it, and therefore we have gone back to the times when societal reaction, moral policing and enforcing what is socially acceptable has again been predominantly affecting the judiciary.