Some thoughts about the recent Indian Supreme Court decision on Section377

Sexual politics are certainly high up on the agenda at the moment – unfortunately for the wrong reasons with protests about Russia’s anti-gay laws and attitudes continuing amidst the Sochi Winter Olympics.  During this, however, the Indian Psychiatric Society (IPS) has had the decency to publically state, ‘there is no evidence to substantiate the belief that homosexuality is a mental illness or a disease’.  The IPS certainly had some appeasing to do after the out-going president, Dr Indira Sharma caused a storm by inferring that homosexuality was ‘unnatural’ and that those uncomfortable with their sexuality could seek help from a psychiatrist that might even help them change their orientation[1].  Perhaps the change in stance was made even more apposite as a UK Indian-trained psychiatrist, Dr Dinesh Bhugra – Professor of Psychiatry and Diversity at King’s College London - is the first president of the World Psychiatric Association who also happens to be gay.

This got me thinking about the recent Indian Supreme Court (SC) decision last December which effectively re-criminalised homosexuality in India, by upholding the constitutionality of Section 377 of the Indian Penal Code (see my blog about this here.  You can also access the full judgment here).  I was interested in what the reasoning was behind their decision and how they came to that conclusion – a decision they more recently declined to review.  I therefore printed off all 98 pages of the judgment and set about reading through it.  After about 10 pages I fell asleep for 2 hours…….a consequence I hope not of the judgment itself but of a bad cold I happened to have at the time.  My sleeping clock was then really messed up when I found myself awake in the middle of that night thinking about the decision and the logic behind it.

I do have that kind of pedantic mind that likes trying to follow logic and arguments.  I have to give our own senior courts here in England and Wales credit for their ability to summarise and analyse arguments and come to a decision in often very controversial cases.  I may not always agree with the decision, but I can usually see how they have arrived at a decision. The more I read of the Indian SC decision, however, the less I followed its reasoning.  I am aware that this readership will probably not be a bunch of lawyers or even pedants, so I will try to curtail my inclinations towards a lengthy micro-analysis, but wanted to share some of my reactions and thoughts on the judgment[2].

The first 45 pages of the judgment are taken up with summarising the previous Delhi High Court decision, and the arguments put forward by the appellants and respondents.  Then the SC puts forward its reasons for allowing the appeal.  I have put these under different headings for clarity, together with my comments.

The SC may have the power to declare Section 377 void but says it’s Parliament’s job, not theirs

The SC first considered the technical point of whether the High Court and the SC had the necessary power to declare as void any pre-Constitution legislation judged inconsistent with the Indian Constitution.  Section 377 forms part of the Indian Penal Code enacted under British rule in 1860, and therefore pre-dates the Indian Constitution.  The SC stated that the High Court and SC were indeed empowered to declare void any law enacted prior to the Constitution and which was inconsistent with the Constitution.  There was, though, a presumption of constitutionality in favour of all laws, including pre-Constitutional laws (para.31, p.60).  The SC, however, then went on to state that:

‘…..After the adoption of the IPC in 1950, around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 IPC belongs.  The 172^nd Law Commission Report[3] specifically recommended deletion of that section and the issue has repeatedly come up for debate.  However, the Legislature has chosen not to amend the law or revisit it.  This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision……..

….It is, therefore, apposite to say that unless a clear constitutional violation is proved, this Court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need’ (paras.32-33, p.61-62)

So: the Law Commission has recommended the repeal of Section 377, the government of India did not challenge the 2009 Delhi High Court ruling, the SC has the power to declare any law void which is unconstitutional yet decides it won’t do it, but instead says it is up to Parliament.  It could be a game of who blinks first – SC waiting for Parliament, Parliament waiting for the SC….

Section 377 is not arbitrary or irrational and is not therefore illegal with respect to Articles 14 and 15 of the Constitution

The judgment then spends the next 14 pages reviewing the rape laws in the IPC and legislative history of Section 377.  Given that Section 377 is very non-specific, in criminalising ‘carnal intercourse against the order of nature with any man, woman or animal’ it is not surprising that interpretations in case law have ranged from anal sex to oral sex and even ‘thigh sex’.  The SC notes that, despite the cases cited referring to non-consensual and coercive sex, Section 377 applies to anyone and refers to certain acts rather than a particular identity or orientation.  So far so good.

After this, I am truly struggling to understand the logic of the judgment.

Article 14 of the Constitution states, ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India’.

Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth.

The SC quotes from Re. Special Courts Bill, 1978 (1979) 1 SCC 380 where it was considered whether a particular classification is unconstitutional.  Here it is argued that Article 14 does not mean that the same laws should be applicable to all persons but that all persons in similar circumstances should be treated alike.  Therefore different classes of people may be treated differently – which is OK as long as the classification in relation to a law is not arbitrary or irrational.

From this the SC concludes that:

‘Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification…..Therefore the High Court was not right in declaring Section 377 IPC ultra vires Articles 14 and 15 of the Constitution’. (para.42, p.82).

So, the argument seems to be that because Section 377 will apply to anyone having sex ‘against the order of nature’ (whatever that means) – heterosexual as well as homosexual, married or not - it is not discriminatory.

It is true that Article 15 does not directly outlaw discrimination on the grounds of sexuality.  But it is almost certainly the case that gay men will be subject to indirect discrimination (on the grounds of sex) as by definition sex between two men does not involve penile-vaginal intercourse.  For the law to truly not be discriminatory, presumably every married heterosexual couple will have to be questioned about how they have sex, and whether this includes anal, oral or ‘thigh’ sex – which is almost certainly not going to happen.  Gay men will therefore be unfavourably discriminated against in the application of this law.

And a law criminalising sex ‘against the order of nature’ is not arbitrary or irrational?

Not enough evidence of discrimination

‘The writ petition filed by respondent No.1 was singularly laconic inasmuch as except giving brief detail of the work being done by it for HIV prevention targeting MSM[4] community, it miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them’. (Para.40, p.78-79)

But surely the SC should be dealing in matters of law and principle?  They are not deciding a specific alleged case of discrimination here but rather the principle of Section 377 and human rights.

The LGBT community in India is only tiny

‘While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution’.  (Para.43, p.83)

But what has the number of prosecutions, or size of the population most affected got to do with the principle of whether a law is unconstitutional?  It is a point of principle, not of numbers – and often human rights protection is even more important for minority populations at risk of discrimination. Section 377 also legitimises anti-gay attitudes in the country and reinforces discrimination in society generally.

Just because a law is vague, it doesn’t necessary make it unconstitutional

-         at least I think that is what the SC is arguing here (it’s not very clear).

The SC remarks that, ‘The vagueness and arbitrariness go to the root of a provision and may render it unconstitutional, making its implementation a matter of unfettered discretion.  This is especially so in the case of penal statutes’ (Para.44, p.83).

Exactly, you might think.  So, criminalising sex ‘against the order of nature’ is pretty vague and open to interpretation or even ‘unfettered discretion’.  Anal or oral sex may be perfectly in accordance with the order of nature for a gay man or woman.

The SC then says, ‘However, while analyzing a provision the vagaries of language must be borne in mind and prior application of the law must be considered’. (Para.44, p.83). It then quotes from K.A.Abbas v. The Union of India and Anr. (1970) which seems to say that no law will be considered bad for sheer vagueness, and that if a law is vague or appears to be so, the court must try to construe it in accordance with the intention of the legislature.

After this quote, the SC moves straight on to considering Article 21 – without stating its conclusion from the previous discussion about the vagueness of the law and discretion in relation to Section 377.  We are therefore left guessing what they are trying to argue here from the two cases they quote from.

The SC can’t help it if Section 377 has been misused

‘Respondent No.1 attacked Section 377 IPC on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community.  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 a reflection of the vires of the section.  It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377 IPC’. (Para.51, p.91)

So the argument seems to be that ‘it’s nothing to do with us’ if the law has been ‘misused’ against the LGBT community even though it seems to criminalise everything other than penile-vaginal sex and this is bound to focus on gay men in particular.

We won’t rely on interpretations from other jurisdictions

Article 21 of the Constitution states, ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’.

The SC states that Article 21 includes the right to privacy, dignity and autonomy and then has a discussion, including again various quotes from cases about the limits of this and how privacy must be balanced against other rights and values.

This seems fair enough – and directly relevant to whether it is any of the State’s business what consenting adults get up to in private[5].

But then, bizarrely, instead of following up this analysis, and when it is reasonable and proportionate to limit personal liberty, the SC berates the High Court for having relied on judgments of other jurisdictions:

‘In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied upon the judgments of other jurisdictions.  Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature’.  (Para.52, p.93).

In fact, no proper follow up or analysis of the perhaps crucial Article 21 takes place.

The first glaring point to note from this section is the term the ‘so-called rights of LGBT persons’.  In what way are their rights ‘so-called’?  The SC does not elaborate.  LGBT people are human beings and therefore, surely subject to exactly the same human rights as any other human being.  They are rights, not ‘so-called’.

The SC quotes from Jagmohan Singh v State of UP (1973) in which the Court observed that, ‘We have grave doubts about the expediency of transplanting Western experience in our country.  Social conditions are different and so also the general intellectual level’ (Para 14. p.94).

The SC also quotes from another case where the High Court refused to rely on Halsbury’s laws of England, seemingly because marriage in India was primarily arranged unlike social norms in other countries.  I am not entirely sure what this has to do with what kind of sex someone has, in private between consenting adults.

It is fair enough that India wants to rely on its own Constitution and legal decisions, but jurisdictions all over the world, particularly those sharing similar types of legal systems – the UK, US, Canada, NZ and Australia in particular will often refer to cases in these other jurisdictions for how issues have been decided.  Also India, like many other countries are signatories to various international legal declarations – for example the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights – which aim to set minimum universal standards, particularly of the relationship between State and individual.  Does India really want to isolate itself from other countries, in such a globalised world?

But there is no such discussion in the SC judgment, simply a statement, after the quoted cases that, ‘In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable’ (Para.54, p.97).

Let’s also not forget that Section 377 itself is a product of a foreign jurisdiction – the British – in the midst of a Victorian puritanicalism.  The UK – along with most other democracies – have moved on from this though as social attitudes have changed and developed.

Some other observations

It is worth also noting that only 2 Supreme Court judges made this judgment: Justices G.S.Singhvi and S.J.Mukhopadhaya.  Justice Singhvi apparently retired straight after this judgment, while S.J.Mukhopadhaya was one of 2 judges who rejected the petition from Indian government lawyers to review its decision.

I was surprised to see only 2 judges having made such a decision of national and international importance.  Their decision would have carried much greater legal weight had there been 5 or 7 judges contributing to the decision.

I was disappointed at the lack logic behind much of the reasoning.  All lesbian, gay, bisexual, transgender people in India – actually everyone regardless of sexual orientation in India deserves better reasoning and better judgments than this one.  It affects not just people in India but 2^nd and 3^rd generation Indians in the diaspora – slowly gaining confidence in their sexual identity in more liberal countries.  It leaves LGBT people in India open to further discrimination and harassment.

I am not an expert in Indian law and these are my thoughts and comments as I read through the judgment.  I am a product of a Western liberal democracy and a believer in universal human rights.  By supporting gay rights, you are supporting human rights – for everyone.

People in India and across the diaspora deserve better than this. Even if the Indian Supreme Court had come to the same decision, their reasoning should have been so much better.  It won’t be the first or the last time that a senior court has undertaken tortuous intellectual cartwheels to justify a previous opinion already held.

Let’s hope the Indian Parliament can change this for a better and more equal world.

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[1] See http://articles.timesofindia.indiatimes.com/2014-01-21/india/46410477_1_orientation-dr-indira-sharma-ips.  Accessed 10 Feb 2014

[2] Prachi Shrivastava has also summarised some of the Supreme Court arguments – ‘7 creative (legal) reasons the Supreme Court found not to strike down Section #377’ in Legally India.com on 11 December 2013.  Mine certainly overlap but the comments are my own.

[3] Dated 25 March 2000

[4] Men who have sex with men

[5] Don’t think the UK law is perfect on this point though – as any good law student will know in the case of R v Brown (the ‘Spanner case’) criminalising consensual sadomasochistic acts between adults done in private.  Except that in R v Wilson the Court of Appeal upheld that a husband branding his initials on his wife’s buttocks was OK – with her consent – because consensual activity between a husband and wife in privacy was not a matter for the courts.  Not great logic here either.

Sex, morality and rape in modern India

I remember on my first visit to India being struck by the seeming chaos of everyday life in the towns and cities.  Creative traffic rules, along with much beeping of horns ruled on the roads, cows wandered freely in the middle of roads, their Hindu sacredness hopefully protecting them from harm. Occasionally naked and ash-covered sadhus were seen communing with their God amidst the urban commuters and street kids.  Western hippies in the 70s (and beyond) were drawn to the rawness of everyday life, the reliance on karma and God, seeming tolerance of difference and freely available drugs – as an antidote to the rational, industrial, sterile and suffocating West.

But this apparent anarchy belies the very conservative underpinnings of Indian society, particularly when it comes to women and how they should behave.  Despite Bollywood more recently showing on-screen kissing and live-in relationships (such as Nikhil and Ambar in Salaam Namaste), notions of family honour and shame are still prevalent and pre-marital sex very much frowned on.

On 6 January this year, it was widely reported that a judge in a Delhi court ruled that sex between two adults on the promise of marriage did not amount to rape[1].  Apparently a man, employed in a multinational company had been accused of rape after his female partner had sex with him after he promised marriage.

Judge Virendar Bhat was quoted as saying,

‘In my opinion, every act of sexual intercourse between two adults on the assurance of promise of marriage does not become rape, if the assurance or promise is not fulfilled later on by the boy…..When a grown up, educated and office-going woman subjects herself to sexual intercourse with a friend or colleague on the latter’s promise that he would marry her, she does so at her own peril.  She must be taken to understand the consequences of her act and must know that there is no guarantee that the boy would fulfil his promise.’

‘He may or may not do so.  She must understand that she is engaging in an act which not only is immoral but also against the tenets of every religion.  No religion in the world allows pre-marital sex’.[2]

This needs some explaining, particularly to a Western audience where pre-marital sex is normal.  No of course it is not rape, I am thinking.  Rape is where sex, or forced penetration of an object into an orifice, is done without consent - or so you would think.

In India, however, these cases are known as ‘false-promise’ cases, which reflect the social stigma that exists – mainly for women – of pre-marital sex.  Typically in these cases, a woman enters into a sexual relationship with a man if he promises to marry her.  If he then later reneges on this promise and doesn’t marry her, she can then accuse him of rape – on the basis that her consent to sex was gained using deception.  Several Indian Supreme Court rulings have held that consenting to sex ‘under a misconception of fact’ (such as an insincere marriage proposal) would constitute rape[3].  To try to avoid the stigma then of having had pre-marital sex, particularly if pregnant, the main tool the woman has is to file an allegation of rape to force her male partner to come back and marry her[4].

One reported example is the case of Rashmi, an architect and her long-term boyfriend Alok.  They had met 5 years previously while working in a Delhi office.  Alok’s family, however, wanted him to marry a local village girl and disapproved of him marrying Rashmi.  When Rashmi found she was pregnant, she pressured him to marry her – to avoid the stigma of having a child out of wedlock.  When he refused, she filed a rape complaint against him.  The strategy worked and they eventually got married – against Alok’s parent’s wishes - and now have a baby daughter[5].

As sexual relationships outside marriage become increasingly common – particularly in urban areas – allegations of ‘false-promise’ rape have also increased.  It is now the leading category of rape in Maharashtra – with a 15.8% increase in cases filed in 2013 from the previous year[6].

The case law in India on sexual relationship and rape seems to be increasingly confused – probably reflecting the friction between traditional conservative values and the more secular westernised values found in the larger cities such as Delhi and Mumbai.  Inevitably the West is blamed for this cultural shift, with a Delhi court last year saying live-in relationships were immoral and an ‘infamous product of Western culture’[7].

From a Western liberal standpoint, I have to agree with Judge Bhat in that pre-marital sex between two adults does not amount to rape if a promise of marriage is not fulfilled, even if his language is somewhat patriarchal and old-fashioned.  In the judgment he talks about a ‘grown up, educated and office-going woman’ ‘subjecting herself ‘(my italics) to sexual intercourse, and doing so ‘at her own peril’.  It is a shame if the woman really does ‘subject herself’ to anything, rather than having a sexual relationship based on freely given consent, as an expression of love and for the mutual enjoyment of both parties – as I (perhaps old-fashionedly) still tend to think.  Within marriage or not.

But Judge Bhat is wrong to say that pre-marital sex is ‘against the tenets of every religion’.  In a previous case, the actress Kushboo was accused of outraging public decency by saying in a 2005 interview that it was not wrong for women to have pre-marital sex as long as they took precautions[8].  In that case, the Indian Supreme Court endorsed the right of unmarried couples to live together, stating, ‘When two adult people want to live together, what is the offence?.....Living together is not an offence.  Living together is a right to life’[9].  They also pointed out that even Hindu Gods Lord Krishna and Radha were co-habiting lovers – forming a precedent even within Hinduism.

Buddhism also has little to say specifically about sex outside marriage.  Whilst Buddhist monks and nuns tend to be celibate, for lay Buddhists the main ethical guideline is the third precept, to ‘refrain from sexual misconduct’ – or in its positive form, to cultivate ‘stillness, simplicity and contentment’.  These are not commandments, but ethical guidelines.  Buddhists tend to interpret this as trying to act in a kind and loving way to any sexual partner – whether inside or outside marriage – with no specific guidelines on marriage or not (a contract, not a sacrament, in Buddhism).

Furthermore, to espouse principles of morality based on religion also ignores the increasing number of atheists, agnostics and non-religious who follow secular guidelines.  The Indian state itself is secular and surely judges are there to interpret and apply the law (which hopefully is based on morality) rather than issuing moral guidelines and appealing to religious codes of behaviour?

The more of these contradictory judgments that come from Indian courts, the more confusing the legal and ethical guidelines seem to be.  For recent cases, we now have, in summary:

• The case involving Kushboo in 2010 where a Supreme Court upheld that it was not an offence to live together before marriage and that it was not the job of the criminal law to punish those expressing unpopular views

• The case of Aysha v Ozir Hassan in 2013 where the Madras High Court held that all sexual relationships were in the nature of a marriage and carried the consequences of a marriage (see my blog about this case here).

• The Supreme Court judgment in December 2013 overturning a 2009 Delhi High Court ruling, and re-criminalising homosexual sex (see my blog about this case here)

• Then this latest ruling saying that pre-marital sex is ‘immoral’ and against the ‘tenets of every religion’ but does not necessarily amount to rape (based on a false promise).

The one glaring omission in Indian legislation is that rape within marriage is still legal, on the basis that the woman (and presumably the man) have given their consent to sex on marriage – seemingly at any time, coerced or not, whether she feels like it or not.  Who on earth would agree to such a distorted marriage contract on that basis?  - that in doing so, you give up completely your control over your own body and when, where and how you have sex?  Anecdotally, you come across some horror stories of how some Indian brides are treated by husbands who think they ‘own’ their wives bodies by virtue of her being financially dependent on him.

In India, therefore, it seems now that consensual pre-marital sex may be rape if based on a false promise – but not always, and may be immoral or not - depending on which court you believe.  Pre-marital sex may also give rise to a marriage-type relationship, with all the associated rights and responsibilities - again depending on the court. Consensual homosexual sex was a criminal act until 2009, then wasn't but now is again.  But forced non-consensual sex within marriage cannot be rape – and is not only legitimised but also not immoral as it is within marriage.  There is no logic.

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[1] http://www.bbc.co.uk/news/world-asia-india-25618163. Accessed 14/01/2014

[2] Ibid

[3] http://online.wsj.com/news/articles/SB10001424052702303460004579192040826366178.  Accessed 14/01/2014

[4] This is a very different situation from laws elsewhere – such as in Morocco – where a male rapist can escape prosecution by marrying his victim, to protect her family’s ‘honour’.  This was recently highlighted in the suicide of 16 year old Amina al-Filali in Morocco, 7 months after she had been forced to marry her rapist.

[5] Supra note 3

[6] The Times of India, 18 Nov 2013

[7] BBC News India, 6 Jan 2014

[8] BBC News, 24 March 2010

[9] Ibid

India takes one giant leap backwards

What a confused world we live in.  That could be a general statement but today it is confusion over sexuality – in particular homosexuality.

On 27 November in the UK we had the Supreme Court judgment in the case of Bull v Hall[1].  This was the case of the Christian hotel owners who refused a double-bedded room to a same sex couple.  This case has been portrayed as one of gay rights against the couple’s right to manifest their religion – and in this case, gay rights won.  In fact the arguments were a little more nuanced than that (as you might expect from a Supreme Court ruling) and if interested, Alasdair Henderson, barrister at One Crown Office Row chambers has written an interesting commentary on this case in the UK Human Rights blog[2].

Then yesterday, it was reported in the UK that gay marriages can take place from 29 March 2014 – earlier than expected following the commencement of the Marriage (Same Sex Couples) Act 2013 in July of this year.  This Act legalising gay marriage (as opposed to civil partnerships) had been strongly supported by David Cameron, leader of the same Conservative Party that had previously introduced the notorious Section 28 of the Local Government Act 1988, prohibiting local authorities from intentionally promoting homosexuality.  How times change. (One might also note this Act has been opposed by  the Roman Catholic Church in England and Wales, the Muslim Council of Great Britain and the Network of Sikh Organisations.  So much for tolerance and goodwill to all men and women).

So far, so good for gay rights and human rights in general.   Then today, in a truly backward step, news from India that their Supreme Court had overturned a 2009 Delhi High Court ruling and recriminalized homosexual sex.

India inherited its penal code from their former colonisers, the British. Section 377 of the Indian Penal Code 1860 states:

'Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine'.

This doesn’t explicitly include homosexual sex and immediately begs the question what exactly is ‘carnal intercourse against the order of nature’.  In 1884 the meaning of this was restricted to anal sex, by 1935 had broadened to include oral sex and later judgments have interpreted it further to include ‘thigh sex’[3].   The Court in the 1935 case of Khanu v Emperor seemed to limit legitimate intercourse to only those acts that could lead to conception – ie.vaginal penetrative sex between a man and a woman.  So, lesbian sex, oral sex (between any couples – including presumably married heterosexual couples) and anal sex (again between any combination of consenting couples) would be illegal. Commentators have argued that, although few prosecutions against gay people have actually taken place under section 377, the social effects of discrimination against any form of sexuality outside married heterosexual sex, together with moral disapproval, has permeated Indian society and legitimized prejudice and discrimination against minorities.

The 2009 Delhi High Court judgment in the case of Naz Foundation v Union of India (2009) was therefore a landmark judgment and victory for LGBT campaigners in India – de-criminalising consensual sex of whatever nature between adults in private.  In particular the Court ruled that Section 377 was against Article 15 of the Indian Constitution, which prohibits any discrimination on grounds of sex, religion, caste or place of birth.  The concluding paragraphs of that judgment are worth quoting[4]:

129. The notion of equality in the Indian Constitution flows from the 'Objective Resolution' moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. He said, "Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation's passion…….. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future." [Constituent Assembly Debates: Lok Sabha Secretariat, New Delhi: 1999, Vol. I, pages 57-65].

130. If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as "deviants' or 'different' are not on that score excluded or ostracised.

131. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.

We allow the writ petition in the above terms.
CHIEF JUSTICE
S.MURALIDHAR, J

JULY 2, 2009

Today’s Supreme Court judgment, in reversing this decision, has had very mixed reaction in India.  Mohammad Abdul Rahim Quraishi, spokesman of the All India Muslim Personal Law Board is quoted as saying,  ‘We are very happy with the judgment. There is no space for homosexuality in our social setup. It is a sin, it is a heinous crime’.  K. Radhakrishnan of Trust God Ministries, said ‘Homosexuality is a Western phenomenon. It has polluted the minds of young Indians. The court has recognized this. We are very grateful’[5]. Just pausing for a moment here: so K.Radhakrishnan is very grateful for a judgment upholding a section of the penal code introduced by the British Victorian colonial powers, because homosexuality is a Western phenomenon which has polluted the minds of young Indians.  Oh dear.

For Subramanian Swamy, however, of the Bharatiya Janata Party, homosexuality is a ‘malfunction of the human body and should be treated medically’. He goes on to say, ‘I welcome Supreme Court judgment holding homosexuality as illegal. It is no accident that men and women are born in equal proportion. Moreover survival of the human race requires one man one woman cohabitation. The government and corporates must fund research to find a cure for homosexuality at the earliest. It is a malady that should not be celebrated but cured with compassion’[6].

For all the LGBT activists, however, and many other supporters, this has been a retrograde step, and even shocking in the 21^st century when LGBT rights are being recognized and codified elsewhere.  The well-known novelist Vikram Seth, a long campaigner for LGBT rights said, ‘Today is a great day for prejudice and inhumanity. And a bad day for law and love. But law develops and love is resilient. And prejudice and inhumanity will be beaten back. And Law and love will prevail. The judgement is a disgrace[7]’.

Colin Gonsalves, Indian Supreme Court advocate and Founder Director of Human Rights Law Network said, ‘This is a day of mourning for all Indians. The 2009 High Court ruling was one of the finest judgments for minority rights and for inclusion. This is a wrong and retrograde approach to fundamental rights. That the legislature should take it up and not the court is an obsolete notion. The Supreme Court has said 500 times in different judgments that it is the duty of the court to intervene when there is a violation of fundamental rights’[8].  And let's not forget this is potentially criminalising oral sex between married heterosexual couples - punishable by up to life imprisonment.

I could not find the actual judgment of today’s Indian Supreme Court but once it is made available, it will be interesting to read the legal reasoning behind this retrograde judgment.  I find myself frustrated at the persistent discrimination against homosexuality in India (of course not universally held), especially in a country that prides itself on being the world’s largest democracy and seemingly with ambitions to become more of a global economic power in the world.

Homosexuality is not a ‘Western’ phenomenon that has been exported around the world.  It is a human phenomenon that is present in all societies, whether legitimized or not.  When the rest of the world is finally recognizing the human rights of all, regardless of sexuality, it is sad to see India take two steps backwards, away from non-discrimination, equality and inclusiveness.

Tweeter Meena Kandasamy summed it up: ‘In India, pre-marital sex = marriage (see my blog about this case here), homosexuality = illegal, marital rape = sex’ (rape within marriage is still not criminalized in India).

We hope for change.

 

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[1] Bull and another v Hall v another [2013] UKSC 73

[2] http://ukhumanrightsblog.com/2013/12/11/gay-discrimination-and-christian-belief-analysis-of-bull-v-hall-in-the-supreme-court/#more-20707 Accessed 11/12/13

[3] From http://iheu.org/content/hated-section-377-indian-penal-code. Accessed 11/12/13

[4] Full text that judgment can be found here.

[5] Quoted in Outlook India at http://blogs.outlookindia.com/default.aspx?ddm=10&pid=3096&eid=31. Accessed 11/12/13

[6] Ibid

[7] Quoted at http://blogs.outlookindia.com/default.aspx?ddm=10&pid=3097&eid=5. Accessed 11/12/13

[8] Ibid