In England, the saying goes, Parliament may legislate that all blue-eyed babies born on Tuesday must be killed. In India, a constitutional democracy, we the people have delegated to the Executive, Legislature, and Judiciary, certain functions.

Legislatures pass laws and courts protect our rights by testing them against the Constitution. The Constitution permits pre-Independence laws to exist until declared unconstitutional by a court. Section 377 has not been approved by Parliament. It simply exists. Therefore Section 377 was challenged before the Delhi High Court.

It was argued that Section 377 was used to harass, intimidate and torture the LGBT (Lesbian, Gay, Bi-sexual and Transgender) community, and that this situation discouraged disclosure even to access medical treatment for HIV/AIDS, and that Section 377 violated the fundamental rights to equality and to life with dignity and privacy.

The High Court, contrary to popular belief, did not hold Section 377 to be unconstitutional. Courts are permitted to read down, that is, interpret the law to limit its scope and preserve its existence. The High Court read down Section 377 to exclude only consensual adult sexual conduct. Therefore, Section 377 continued to apply to non-consensual actions, and to sexual acts against minors.

The Government of India endorsed the High Court’s decision and did not appeal. The appeal was filed by third parties who were not in any manner affected by Section 377.

The Supreme Court held that the High Court erred in excluding consensual adult sexual conduct from Section 377. The Supreme Court upheld a law that allows the State to decide how we may have sex.

By permitting third parties to appeal, the Supreme Court has created a new risk to litigants.

Power of Judicial Review

The Supreme Court justified its decision on the basis that Section 377 has been in force since 1860 despite the recommendation of the Law Commission to delete it. The apex court held that it must be guided by the fact that Parliament has not deleted the provision.

Should courts be curtailed by Parliament’s somnolence?

Why didn’t the Supreme Court defer to the Government’s decision not to appeal?

Section 377 penalises “voluntary carnal intercourse against the order of nature” (unnatural sex) with up to life imprisonment. “Penetration” is not essential.

After reviewing the history of the section, and various judgements on the issue, the court concluded that “no uniform test can be culled out to classify acts as carnal intercourse against the order of nature … it is difficult to prepare a list of acts which would be covered by the section”. Therefore, no one would know what is illegal until they are found guilty.

Heterosexuals Beware! The Supreme Court held that Section 377 “merely identifies certain acts which if committed could constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation”.

Hence even a heterosexual couple could face life imprisonment for “unnatural sex”.

The Supreme Court held that persons who engage in ordinary carnal intercourse constitute a different class from people who indulge in carnal intercourse against the order of nature without any explanation on how it arrived at this conclusion. None of “intelligible” differentia, the object of Section 377, or rational nexus was ascertained.

Having acknowledged that the meaning of “unnatural sex” is unknown, can we ever classify it?

The court has not held that sex is only for reproductive purposes. Then how can any form of adult non-reproductive sexual activity be illegal? Persons would be punished simply for their sexual style.

Vague and arbitrary Ignorance of the law is no excuse. Hence the law must be unambiguous. Particularly in penal statutes, clear definitions are a must, as otherwise enforcement would become a matter of unfettered discretion. Section 377 is as clear as mud; even the Supreme Court is unable to discern what conduct is punishable.

In K. A. Abbas the Supreme Court held “invalidity arises from the probability of misuse of the law to the detriment of the individual. If possible, the court, instead of striking down the law, may itself draw the line of demarcation”.

The Delhi High Court clearly provided the line of demarcation by holding that only non-consensual actions would be covered by Section 377. The Supreme Court has not explained why this is wrong.

The court held that 25 lakh LGBT individuals is a “miniscule fraction” of the country’s population and that only 200 persons had been prosecuted under Section 377, and hence they do not qualify for the protection under Articles 14, 15 and 21 of the Constitution.

The court failed to specify the threshold number. This is an invitation to discriminate against minority populations.

Article 21 guarantees to all persons the right to life, and to live with dignity and privacy. A necessary concomitant of this right is the ability to control and decide the fate of one’s body.

That the State must have a “compelling and superior interest” in invading privacy is not new or unknown. Restrictions on late-term abortions are justified on balancing a woman’s absolute right of reproductive choice with the State’s “compelling interest” in protecting the foetus. Similarly, the right to life “must include the right to carry on such functions and activities as constitute the bare minimum expression of the human self”.

The Supreme Court held that Section 377 doesn’t violate the right to life with dignity and privacy since it does not mandate the torture or humiliation of the LGBT community, and that any such misuse of the law was not condoned by Section 377.

However, the Supreme Court clearly ignored the fact that sex is not merely an insensate act but one of expression, enjoyment and exploration of self, and the relationship with another.

Cultivated sentiment The court ignored the fact that many laws do not at first glance appear to intrude upon the privacy or trample the rights of the individual. Telephone tapping is prohibited because “conversations on the telephone are often of an intimate and confidential character… is an important facet of a man’s private life”.

Surely when we consider the privacy of a telephonic conversation to be paramount, the same courtesy must extend to adult consensual sexual activity, which by its very nature is intimate.

In conclusion, one can do no better than quote B. R. Ambedkar: “Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic.”

(The author is a Chennai-based lawyer.)

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