Section 377: The simple, stunning logic in the curative petition that will make it easy for the SC to strike down the regressive law

By Ashok Row Kavi

It feels strange one day after the Curative petitions challenging Justice Singhvi and Justice Mukhpadhyaya's judgment on 11th of December 2013 have been deemed fit to be heard by a Constitutional Bench of the Supreme Court. Thus a legal process that seemed to be taking us from the depths of despair to an enervating ecstasy is now making us read the petitions all over again.

I see the door to the Temple of Justice has opened slightly showing us a glimmer of hope coming through. Receiving literally hundreds of messages, phone calls and twittering reach-outs, many even threatening suicides if we were not heard in court, I for one, am exhausted at the incredible way we are dependent on the judicial process to send us democratic messages which should have been really Parliament's job.

The first message that the Supreme Court has sent out loud and clear is to the executive branch, especially the police forces which maintain law and order regarding the sexual minorities coming under SOGI (Sexual orientation and gender identity). The harassment through extortion, blackmail and sexual violence against them is on the Court's radar now. No more is it going to go un-noticed. And any ideas of "public morality" as against 'constitutional morality' will weigh heavily in favor of the later.

This, the Supreme Court has indicated through a simple mechanism — it has constituted a bench of five senior judges to hear the infirmities of the 2013 judgment, if any. In other words we will not be so easily thrown to the mercy of an unrelentingly homophobic and misogynistic Lok Sabha. So there is hope.

However, even as I read the curative petitions, what stunned me was the simple logic embedded therein. For example, in a small and snappy chapter titled "Presumption of Constitutionality", the petition states: "...Section 377 could not have been presumed to be constitutional since at the time of its enactment, the legislating authority had no knowledge of fundamental rights or other Constitutional limitations on its power". This argument by itself is a damning comment on Section 377's formulator, Thomas Babington Macaulay, the British Raj Administrator who had scant regard for Indians and their cultural mores.

Representative image. Reuters

Representative image. Reuters

It doesn't say so but it's obvious that Macaulay wasn't all that conducive to allowing the brown men he ruled over any significant democratic rights while introducing a Judeo-Christian law which had crept into British Criminal law through Ecelestial channels.

Here is where I see tremendous hope that the Bench will see reason and declare section 377 undemocratic and unconstitutional.

You cannot impose a colonial law and use the most democratic of Constitution as a curtain to cover-up and pretend you are being inclusive. The Delhi High Court had stressed the inclusive nature of the Indian Constitution in that it encouraged minorities of every kind to live a life of equality and dignity and join the mainstream in nation building. Section 377 expressly denies us that right by classifying us through an arbitrary and curious classification. How?

Here is what the curative petition says in this matter. In its very beginning this "error" in the 2013 judgment, the petition says: "a patent error of law is that there is no intelligible differentia "real and substantial difference', no 'yardstick or measure', no "policy or principle for guidance to distinguish between "carnal intercourse in the natural course" from "carnal intercourse against the course of nature". Hilariously, the judgment itself, after reviewing reported judgments on Section 377, recorded at para 38 that not only was it NOT possible to list acts which were covered by Section 377, but no tests would be laid down to differentiate "carnal intercourse against the order of nature".

The joke is in America, for instance, it came to a stage where anything that didn't end in reproduction was dumped under the sodomy statutes till it became ridiculous. Similarly, in India, certain acts like even mutual masturbation could be termed as "against the order of nature".

This arbitrary classification and categorization of humans allows the State to create two different categories of people without any test to determine who is in which category and therefore violates Acts 14 and 15 of the Constitution. i.e our right to equality and dignity. The whole judgment based on such arbitrariness seems to be bizarre now as you read the curative petition. What makes it more dangerous for the LGBTI communities is that it leaves such important forensic sexuality matters to the police and hence leaves us vulnerable and open to police harassment, extortion and blackmail.

However, far more serious that is what happened to that category which the State finds as felons who commit acts "against the order of nature". The Delhi High Court judgment has scores of scientific affidavits attached from 13 senior psychiatrists, psychologists, counselors and mental health professionals, including a Professor of Psychiatry at the National Institute of Mental Health and Neurosciences, Bangalore, a fellow of the Indian Psychiatric Society, a member of the International Advisory Board of the International Journal of Social Psychiatry, an editor of the influential Lancet series on global health, and a lecturer in psychiatry, Maharashtra Institute of Mental Health. All these worthies applied to be impleaded before the honorable court and were allowed to intervene in the special leave petition.

All these petitioners were heard through their counsel and detailed written submissions with authoritative scientific literature from reputed academic peer-reviewed journals supporting the Delhi High Court were submitted. To our horror, the Supreme Court judgment of 2013 which overturned the Delhi High Judgment does NOT "mention, refer, or deal with the submissions" at all. This is a gross violation of the principles of natural justice. What is one of make of this lament of learned men who pronounced on the "naturalness" of the category of persons committing acts "against the order of nature"? And then read that Section 377 which made us into undeclared felons was constitutionally right?

If this is not frightening, the curative petition pointed to another strange logic in the 2013 Supreme Court judgment. The curative petition pointed out that the judgment's noting: "Only 200 prosecutions over 150 years cannot be made a sound basis for testing the vires of Section 377", It added that the judgment "introduces a numerical requirement for the protections of Chapter III of the Constitution whereas it is long settled that the fundamental Rights of numerous minorities, even minorities of one, are entitled to full protection". This distressing abdication of duty of the refusal to defend the rights of what it called "miniscule minorities", is something that nobody can dare to forget. It's dangerous to be relegated to invisibility because one is uncommon and singularly different from the mainstream as LGBTI discover in society.

According to me, this small set of arguments by themselves constitutes enough of reasons in determining how we want the hearings to go. Whether the honorable men populating this bench of the Supreme Court of India hear the lament of unfair and inequitable treatment of SOGI sexual minorities is for the future to decide.

Meanwhile, we must remember that this case will be the synclosure of the whole legal fraternity of developing countries burdened as they are with colonial laws that have become a barrier to not just health services but to social development of whole societies. The developed countries with their ever expanding global industrial machines will be concerned because penal laws against sexual minorities have become an embarrassment in the workplace. Scores of intelligent people do not wish to come to India with such a regressive law on the statute books.

However, let me end on a sober note. It is indeed painful that our elected representatives have failed us as they have failed other minorities promised constitutional rights. But we can never lose hope. There is a fresh glimmer of dawn on the horizon thanks to Justice Thakur of the Supreme Court and it only gives us an impetus to work with the Lok Sabha's callous quarreling members. Maybe once in the while they will glance outside that circular Parliament House and see the state of society outside the cacophony filled Home of Indian Democracy.

Updated Date: Feb 03, 2016 15:53 PM

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