Section 377 and the error of judgment

Long road ahead The judgment has increased prejudice against LGBT persons in spaces as diverse as workplaces, families and public areas, Photo: Ankit Agrawal
Long road ahead The judgment has increased prejudice against LGBT persons in spaces as diverse as workplaces, families and public areas, Photo: Ankit Agrawal

The Supreme Court in its wisdom rejected the eight review petitions filed challenging the judgment in the Suresh Kumar Koushal vs Naz Foundation case with a singularly laconic order which said, “We see no reason to interfere with the order impugned. The Review Petitions are, accordingly, dismissed.”

The order, delivered on 11 December 2013, confirmed that Section 377 of the Indian Penal Code suffered from no constitutional infirmities and would continue to apply with full force.

This is a particularly troubling decision. One expected that the SC would examine the decision under review closely and address the serious anomalies of both law and appreciation of basic constitutional principles that Suresh Kumar Koushal suffered from.

It is a deep and troubling failure, especially when the review power is meant as an opportunity for the court to correct itself. The problems with the decision were not only pointed out by public commentators but also placed before the review bench in eight well-researched review petitions filed by the Union of India, Naz Foundation, Voices Against 377, Minna Saran and 17 other parents of LGBT persons, Shekhar Seshadri and 13 other mental health professionals, Ratna Kapur and other law professors, Nivedita Menon and 15 other teachers as well as Shyam Benegal.

Firstly, the court was wrong in asserting that there was no factual basis to the petition filed by Naz Foundation and that the challenge to the law was merely academic. The voluminous material before the Supreme Court consisting of FIRs, judgments, affidavits, court orders and fact-finding reports documented the rights violations suffered by the LGBT community under the shadow of Section 377. This egregious error of fact should have been noticed by the review bench and rectified.

Secondly, if a judgment is a reasoned decision, in which we are told as to why the judges decide in a particular way, the decision fails to tell us why the review bench came to its conclusions. One is not told why Section 377 does not violate the right to equality, privacy, dignity and health. This is an egregious violation particularly when there were voluminous, submissions on how Section 377 was an unconscionable intrusion into the right to privacy, equality, health and dignity. The same arguments were strong enough to persuade the Delhi High Court, but as far as the SC was concerned, it chose to not even profer reasons as to why it found Section 377 valid.

The review would have been the ideal opportunity for the judiciary to correct itself. Unfortunately, in what can only be read as either indifference or callousness, the judges chose to ignore the flaws of reasoning.

Thirdly, when the court held that the challenge to Section 377 would fail as the LGBT was a “miniscule fraction of the population”, it failed to appreciate that the core of the philosophy of human rights as embodied in the Preamble of the Constitution was that human rights were universal. In a diverse and plural country like India, it is the responsibility of the judiciary to ensure that “miniscule minorities” are protected from rights violation regardless of majority opinion.

Among the applications filed before the court was an application for the stay of the judgment based in particular on clear and compelling evidence of the impact of the judgment since 11 December 2013.

Ever since the judgment under review was pronounced, there have been profound and deleterious consequences on the right to life, dignity, privacy and equality of the LGBT population. There are documented instances coming in from across the country of how the judgment has emboldened the local police authorities to intensify the harassment of the LGBT population. There are also documented incidents of how the judgment has sanctioned public declarations of extreme prejudice towards LGBT people.

In one particularly egregious incident, a civil society group has called for the death penalty for homosexuals. Counsellors and mental health professionals are beginning to see the impact of harsh and discriminatory laws such as Section 377 on LGBT persons’ sense of self-esteem, dignity and the ability to be full and productive citizens of India. Counsellors have also attested to discriminatory attitudes becoming more marked in spaces as diverse as workplaces, families and public areas. Parents of LGBT persons have expressed how the re-criminalisation of their children’s lives has resulted in a huge blow to the ability to enjoy family life free of the fear of harassment by the police. Gay people have testified to the fact of how the judgment has increased prejudice. This evidence of harm was again ignored by the SC.

The last chance for the court to self-correct itself would be through the curative petition on which hinges, not only the rights of the LGBT community but also the right of the wider citizenry of India to get decisions that are based on a form of public reasoning and that are based on an appreciation of the Constitutional philosophy.

While the Courts are obviously very important when it comes to “miniscule minorities”, one should note that the court’s decision has also been a coming of age for the LGBT community. The community stands politicised by a decision that is really a stinging rebuke to the very personhood of LGBT persons. The decision continues to be an affront, and the community will continue to expose Koushal’s reasoning and illegitimacy and build public support for the right to a dignified existence of the LGBT community.

Like the Dalit struggle or the struggle of the blacks for emancipation, the road to justice remains long, but what is clear is that the LGBT community will not rest till this unconscionable insult to their very dignity becomes a part of history.

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