Sunday, December 15, 2013

Tiptoe through the Clause 377 tulips

In this post instead of justifying the Supreme Court decision on NAZ Foundation case as I had done in a recent post [1] (tongue fully in cheek) tackling the issue from left field, I want to shift to the right field, the field of human rights. I am going to ask the learned judges certain questions based on the newspaper report I have read [2]. The questions arise in the mind of a person who is not a legal eagle. E&OE.
To start with the basics, “the Supreme Court on Wednesday held that homosexuality or unnatural sex (my emphasis) between two consenting adults under Section 377 of the Indian Penal Code is illegal and will continue to be an offence.” The exact words used in the clause of the IPC impugned by the Delhi HC and now restored to its wrongful position by the Supreme Court are “against the order of nature.”
Are the judges aware that homosexuality is not confined to Homo sapiens sapiens? As it is not exclusive to our species and occurs in the natural world how can it be unnatural? Be that as it may, even if homosexuality is not practiced by any other species, it cannot be against the order of nature because it is practiced by humans, who are part of nature. In my humble opinion, then, the SC Bench should have concurred with the Delhi HC verdict, or at the very least removed the offending phrase “against the order of nature” from the said clause. It did neither. Tut, tut …
The Bench also said that the disputed clause does not violate the Indian Constitution. Yet, it said that, “the competent legislature (my emphasis) shall be free to consider the desirability and propriety of deleting Section 377 from the statute book or amend it …” Now, this is where the tiptoeing-through-the-tulips comes into picture. Would deleting a section of the constitution which has been specifically found to be valid by the Supreme Court not raise constitutional questions? Like, the Parliament has gone behind the back of the judicial branch of the government. I would imagine it does. What if the law comes in front of the Supreme Court? Will it go with the precedent or annul it? What would that say about the judicial branch’s fealty to history and integrity? Then, will we not be opening boxes of Pandoras?
OK, you say, let us go in for a constitutional amendment, bypass the Supreme Court. Not so fast, not so easy. Even ignoring that it is not the legislature in its basic set of functions that amends the constitution, we have the Basic Structure doctrine which does not appear in the document yet has been read into it. What if the Supreme Court takes suo moto cognition of the issue? Then, it can read even Clause 377 into the Basic Structure. No point saying it is improbable. We are talking about possibilities here, and not probabilities, you must remember. Another Pandora.
One of the judges opined that LGBT “constitute different classes” of people. Based on this classification, the learned judge said, “...the people falling in the latter [LGBT] category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification.” My question here is, whence the classification. Obviously not in the constitution. Then, how has the classification been read into it? Indeed, such classification appears to be arbitrary and irrational!
Now, we play the numbers game. The Bench also took recourse to the fact, “a miniscule fraction of the country’s population constitutes lesbians, gays, bisexuals or transgenders, and in the more than 150 years past, less than 200 persons have been prosecuted for committing offence under Section 377”. For the sake of argument, let us agree that the LGBT group is minuscule.
When have the rights of a citizen come to depend on the numbers of any category under any classification? We live in a country that is justifiably proud of the fact that it gives access to individuals to exercise their franchise by locating voting booths in the remotest places, some for as few as a dozen people or even less. Then, does such facilitation run afoul of the numbers game the Bench is playing?
The above questions are not exhaustive; they are my immediate queries. Perhaps among the few of my readers, some may find in them to ask himself or herself these questions, get an answer and educate me.
Till then, I will be tiptoeing through tulips.
Raghuram Ekambaram
2.    Supreme Court sets aside Delhi HC verdict decriminalizing gay sex, J Venkatesan, The Hindu, December 12, 2013

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