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
References
2.
Supreme
Court sets aside Delhi HC verdict decriminalizing gay sex,
J Venkatesan, The Hindu, December 12,
2013
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