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Criminals once again – A critique of the Supreme Court of India’s decision to recriminalize homosexuality

An Opinion Editorial by Nivvedan Senthamil Selvan

In a surprising turn of events, and a major blow to LGBT rights in India, the Supreme Court of India has overturned the landmark 2009 Delhi High Court judgement which decriminalized homosexuality, terming it “legally unsustainable”. This perhaps makes India the only country ever to re-criminalize homosexuality.

The Delhi High Court had previously ruled that the 1860 colonial law – Section 377 of the Indian Penal Code (IPC) which punishes “carnal intercourse against the order of nature” as unconstitutional insofar as it criminalizes consensual sexual acts between adults in private. The Supreme Court judgement has created a huge uproar on social media where it was met with condemnation, even by Government ministers.

Prima facie the judgement does sound absurd and is popularly seen as regressive and a curtailment of individual rights. However, once the 98-page judgement is read through, the Supreme Court is technically correct in some respects and not completely absurd, though some parts of the judgement certainly are. The judgement is perhaps not the most stellar work of the Supreme Court, and there are huge gaps left unfilled especially in the reasoning department. Facts and huge quotes from previous judgements on relevant aspects are presented, followed by the conclusion leaving most of the reasoning and analysis to the imagination of the reader. I have taken the liberty here to hypothesise the lines of reasoning that could have lead from the presented observations to the conclusion drawn.


In 2009, the Delhi High Court read down the Section 377 of the IPC stating that criminalization of consensual sexual acts in private is in violation of Articles 14 (Right to Equality), Article 15 (Protection against Discrimination) and Article 21 (Right to Life and Dignity) of the Indian Constitution. Around 20 petitioners, mainly religious and conservative groups, filed an appeal to the Supreme Court against the High Court verdict. The Supreme Court verdict makes it explicitly clear that it only examined the constitutionality of Section 377 in the context of the Delhi High Court ruling and not whether the law should or shouldn’t be there as an absolute. The latter is left up to the legislators.

“I’m not against gay people; I’m just against what they do”

The Supreme Court declares that section 377 is not in violation of articles 14 and 15 on the basis that it does not discriminate any class of people, but merely criminalises certain acts irrespective of who commits the said act and therefore doesn’t constitute discrimination. This sounds very much like – “I’m not against gay people; I’m just against what they do”. In my humble opinion, when you prohibit a certain act that is of great interest to a particular community, it does constitute discrimination against that community. A good analogy would perhaps be a law prohibiting Mosques. In this case, the Supreme Court would have to hold that since the law is only against the act of building a Mosque, irrespective of who builds it, therefore, the law is not discriminatory against Muslims. When a law prohibits the interests of a particular community, in this context an act that forms the essence of the characteristic defining a community, it is absurd to claim that the law is not discriminatory against that community.

Misuse of the law and harassment by State Machinery

An argument used by the petitioner for the repeal of 377 was that the section is frequently misused by law enforcement to harass LGBT persons. The Supreme Court makes the observation that harassment is not warranted by the law and misuse on the ground doesn’t render the law itself invalid. I found the Supreme Court’s judgement very justified here.

A miniscule minority

The Supreme Court holds that the LGBT population in the country is miniscule and fewer than 200 prosecutions have happened under section 377 in the last 150 years, and therefore there is no sound basis in deeming 377 unconstitutional. Firstly, the statement doesn’t make any sense at all to me and secondly, it flies right in the face of minority rights. How does the number of prosecutions relate to the constitutional validity of a law? And, how in the name of all that is good and pure, can the Supreme Court say, “It’s a minuscule minority, so I don’t care”?

Jurisdictional Relevance

The Supreme Court holds that the Delhi High Court used judgements from foreign jurisdictions to make a case that section 377 is unconstitutional. Although they could give great insights into the interpretation of fundamental rights, they cannot be applied blindfolded in the Indian jurisdiction. This seems a very reasonable thing to hold.

“Hey! I’m not convinced!”

The Supreme Court reviewed whether the right to Life and Dignity is violated by Section 377, specifically the facets of the right to privacy, the right to bodily autonomy and the right to health. A major premise of the Supreme Court’s conclusion here seems to stem from the presumption of constitutionality – which is to say that a law enacted by legislators is presumed to be constitutional, unless and otherwise proved. The burden of proof falls on those who challenge the constitutionality. The Supreme Court holds that the right to privacy and bodily autonomy can be infringed upon when there is considerable state interest. In the case of the right to bodily autonomy, the court quotes abortion laws where abortions are regulated since the state has considerable interest in preserving the life of the unborn child. However, the Supreme Court in no way justifies how the state has interests in the provisions of Section 377. Personally, I don’t see what possible interest the state could have in the manner in which consenting adults  sexually interact in private. Even more so, is the interest justified enough to infringe on their privacy and bodily autonomy? However, the problem here is that the burden to prove that there is no interest of the state rests on the petitioners due to the presumption of constitutionality and the Supreme Court doesn’t seem convinced by their arguments.

The Delhi High Court held that Section 377 violates the right to health which is a crucial component of the right to life, by hampering the HIV/AIDS prevention efforts among the LGBT community. Here again, the court wasn’t satisfied with the supporting facts and statistics provided by Naz Foundation and other NGOs working on HIV/AIDS prevention.

I have two problems with this part of the Supreme Court judgement. Firstly, the court seems to have a ridiculously high bar for proof to the point that it seems to be just unconvinced without reason. Secondly, although I’m not sure how burden of proof works here, it seems more logical that, when a lower court has already deemed something unconstitutional, the higher court should prove otherwise instead of just stating “Hey! I’m not convinced!”

What now?

The ball is now in the legislators’ court.  After the Supreme Court judgement, it is perhaps for the first time that the major political leaders in India have publicly spoken out on the issue. Many leaders of the ruling party have come out against the Supreme Court judgement, including the Congress chairman Ms Sonia Gandhi and the law minister Mr Kapil Sibal. While they have promised to restore the Delhi High Court verdict, it is unlikely that any legislation could be passed before the next elections in early 2014. The opposition party, BJP, has remained surprisingly mum on the issue except for one MP who favoured the Supreme Court verdict. This is not a good sign for the LGBT community in India and the way that the election winds seem to be blowing, LGBT Indians are likely to remain criminals for the foreseeable future.

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