By upholding the colonial laws of the Victorian era in Suresh Kumar Koushal and Another vs. NAZ Foundation and Others, the Indian judiciary, in Justice Holmes language, has fallen into the ‘pitfalls of antiquarianism’ by failing to look beyond the imperial period. The living monuments of Indian civilization at Jagadambi Temple at Khajuraho and ancient texts such as Patanjali’s grammer, the Kamasutra and the Strinirvanaprakarana don’t seem to extend degraded treatment to sexual minorities. Homosexuality was never an alien custom to Indians, but its criminalised armour was brought to our shores by the Imperial power. By the Sexual Offences Act, 1967, though England de-criminalised homosexuality and acts of sodomy between consenting adults above the age of 21, our country is still mesmerised by archival English morality. The Supreme Court judgment on Sec. 377 setting aside the Delhi High Court judgment de-criminalising consensual sexual activity between consenting adults, is subjugation to the ‘respectability’ imposed by the old imperial rulers.
The intervention of state over an individual’s body and mind can never find support in legal jurisprudence. The individual’s right to choice cannot be superseded by the state which is also a challenge to the jurisprudential basis of Section 377 itself. The use of state power or criminal law to enforce ‘popular’ and ‘majoritarian’ morality or subvert non-dominant conduct is irrational and unreasonable in any democratic state. H.L.A. Hartvehemently criticised the imposition of universally shared morality on the society during the law versus morality debate. By this, he negates legal enforcement of majoritarian morality on the sexual minority.
The criminalisation of consensual sexual activity under Section 377 is absolute interpretation of pro-creation as an objective of sexual activity. The implied reasoning that any non-pro-creational activity is against nature is highly intruding into the right to choice of the human being in pursuit of happiness. Critics of this judgment would agree that upholding Section 377 istantamount to its use as an instrument of sectarian oppression and moral propagation. The pre-ordained mind set of the Court has come up with perverse reasoning to create a criminal class excluding our fellow human beings from enjoying the constitutional rights of right to equality, right to privacy, right to health, right to dignity, bodily integrity and right against discrimination and special protection.
Supreme Court assails Delhi High Court for exceeding the scope of judicial review while re-interpreting Section 377 in NAZ Foundation judgment in 2009. While dealing with this issue in detail, the court (has) laysheavy reliance on the following principles:
(1) ‘Presumption of constitutional validity’: Section 377 remains as substantial law despite 6 decades of post-independent law making by the legislature. The ‘popular’ democratic parliament of India has kept this section ‘intact’ and protected it from any infirmities through amendments. Therefore section 377 has withstood the test of the time. This section is immune from Constitutional challenges as its constitutional invalidity is neither clearly established nor mentioned anywhere in the legislative process by the legislature.
(2) ‘Doctrine of Severability’: It emphasises on reading the section wholly along with the scheme, purpose and intention of the legislature and also restrainsthe power to invalidate a Section in case two portions of the section are inextricably related to each other. The justification of the court is that the cases decided by the court under the ambit of the phrase ‘carnal intercourse against the order of nature’ were all for coercive or non-consensual sexual incidents, hence there is ample logic to state that the section is a recourse for victims such as women and children. It is this logic that restrained the court from applying ‘doctrine of severability’ and undo the progressive interpretation given by the Delhi High Court.
(3) Principle of ‘reading down’: Supreme Court criticises the Delhi High Court’s judgment for its attempt to limit the meaning of the words in the legislation. This criticism is on the basis that the court is not convinced about the ramifications of Section 377 on sexual minorities as the effected population by the state machinery is found abysmally low, denoting only 200 cases of prosecution. Therefore, the Supreme Court negates the reading down of Section 377 by the Delhi High Court.
None of the principles referred to by the Supreme Court hold any relevance in the human rights paradigm. This judgment would facilitate state intervention into the private space of human beings, wide spread blackmail and extortion of sexual minorities for bribe and sexual favours and above all degradation of human dignity by the state. Their right to protection against violence by the state and the society, to have consensual sexual activity, to be employed without being a criminal, to reside without fear of eviction, to marry according to individual interest and to enjoy other civilian rights are at jeopardy by the conventional wisdom of the judiciary today.
The judgment does not hold any substantial discussion to overrule the strong inclusionary perspective of the Delhi High Courtin the judgment. NAZ judgment has established that discrimination based on sexual orientation would amount to sex-based discrimination and hence violatesa constitutional mandate under Article 15. Also it has affirmed that the right to exercise autonomy “enables an individual to fulfil all legitimate goals that he or she may set”. Physical and spiritual integrity of the human being, person’s freedom of choice and action, freedom of expression and movement and right to enjoy self-respect and self-worth have been considered to be components of individual dignity under the NAZ judgment.
Discriminating any human being on the basis of immutable identity is challenging anyone’s right to life and liberty. Denial of fundamental right by the state and upholding of the same by the Apex Court of the country on flimsy grounds paints a dark day for both judicial activism and human rights activism in India. The ‘window-dressing’ donetowards the end of the judgment to consider its deletion by the competent legislature, invites Central Government to bridge the gap between the law and interpretation, which was rightly a judicial prerogative and appropriately exercised by the Delhi High Court in NAZ Judgment. As the Judge retired immediately after pronouncing this controversial judgment, now the recourse is to file a review/ curative petition before the Supreme Court against re-criminalisation of sexual minorities. This requires re-mobilisation and solidarity among human-lovers. As a constitutional democracy, our endeavour is to ensure liberty and equality in thought and practice. Judiciary cannot be ahistorical and therefore misled by the glibness of the hyper majoritarian morality.
(Dr. Sophy Joseph is Assistant Professor of Law at National Law University Delhi. Sophy’s areas of interest are Globalisation, Technology and Human Rights, Social Exclusion and Development, Legal History)
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