To be equal before the law

India’s decision to abstain on a vote at the UN Human Rights Council on the LGBT issue sharpens the focus on the Supreme Court’s next steps on Section 377

On June 30, following a seminal vote, the United Nations Human Rights Council passed a resolutioncreating a post of an independent expert on sexual orientation and gender identity. This expert, once officially appointed, will be tasked with the job of studying and reporting annually on the nature, the cause, and the extent of discrimination faced by lesbian, gay, bisexual and transgender (LGBT) personsaround the world. In many ways, the establishment of the new post exemplifies a growing global trend towards addressing the egregious human rights violations suffered by LGBT persons. But to us, in India, it must come as a matter of grave shame that our country, in an act utterly unbecoming of a modern progressive state, chose to abstain from voting altogether to appoint the expert.

Suhrith Parthasarathy

Disingenuous explanation

At Geneva, India offered no official reasons for its abstention. Vikas Swarup, the spokesperson for the Ministry of External Affairs, however, had this to say later: “As you know, the issue of LGBT rights in India is a matter being considered by the Supreme Court under a batch of curative petitions filed by various institutions and organisations… As you also know, the Supreme Court is yet to pronounce on this issue. As such we had to take this into account in terms of our vote on the third UN resolution to institutionalise the office of an independent expert to prevent discrimination against LGBT persons.” This purported justification, though, is somewhat disingenuous, and it presents to us the hidebound nature of our Republic’s institutional machinery.

It is no doubt true that the Supreme Court is presently seized of cases challenging the constitutionality of the law that criminalises homosexuality. But, it’s also worth bearing in mind that this fact, that the issue is sub judice, has scarcely stopped India from voting to embrace a series of amendments that weaken the larger resolution adopted to appoint an independent expert. One of these amendments that were introduced by Pakistan, on behalf of the Organisation of Islamic Cooperation, and that was adopted after India voted in its favour, explicitly states that the expert’s mission would ensure, at all costs, respect for the sovereign right of every country to implement its own national laws — in India’s case, this is a direct reference to Section 377 of the Indian Penal Code, which makes even consensual homosexual activity a crime. Therefore, any report of the newly appointed expert would have to give sufficient weight to the fact that India’s laws proscribe, and even criminalise, homosexuality.

A long history

When viewed in this light, it’s clear that India’s abstention in the principal vote to appoint the expert is anything but a display of neutrality. This decision was neither a product of indecisiveness nor does it signify any expression of disinterest on the subject; on the contrary, it must be viewed as a subtle act of deception aimed at furthering the reach of a law that is decidedly iniquitous, that cruelly denies to several persons their basic human dignity, and that impinges on the rights of a sizeable slice of the populace from participating fully in the make-up of our country’s moral bedrock.

In July 2009, the Delhi High Court, recognising the inherent injustice in Section 377’s operation, rendered a momentous verdict, and found that the law, in persecuting a community purely based on the sexual orientation of its members, was patently opposed to the Constitution’s essential promises. However, just over four years later, in Suresh Kumar Koushal v. Naz Foundation, the Supreme Court reversed this finding. Here, a bench of two judges, through a judgment delivered by Justice G.S. Singhvi, doggedly refused to see the LGBT community as equal partners in our citizenry. Instead, the court restored Section 377 to its archaic ingloriousness, granting validity, in the process, to the state’s ability to criminalise acts based on perceived moral grounds, notwithstanding the effect that such laws might have on the fundamental right of a person to be treated with equal concern, and of the right that such persons have to be allowed to freely make ethical choices on how they seek to live their lives.

Section 377, plainly read, punishes with imprisonment for life or for a term of up to 10 years any person who voluntarily has “carnal intercourse against the order of nature with any man, woman or animal”. At its core, therefore, is an intention to enforce a decree against actions that are professed to be beyond the warrants of society’s moral compass. Only, that in the case of criminalising homosexuality, it is the outlawing of the act that is immoral, and not the act itself. This fundamental iniquity in Section 377 is, in fact, evident even from the notes of its drafter Lord Macaulay, who had specifically aimed to enforce Victorian morality through the criminal justice system. “We are unwilling to insert, either in the text, or in the notes, any thing which could give rise to public discussion on this revolting subject,” Macaulay wrote in his chapter on “unnatural offences”. “…We are decidedly of the opinion that the injury which would be done to the morals of the community by such discussion would far more than compensate for any benefits which might be derived from legislative measures framed with the greatest precision.”

As the American philosopher Martha Nussbaum has argued, the Supreme Court’s verdict in Koushalshows us that there is an almost pathological emotion of disgust at the heart of any perceived rationale for criminalising homosexuality, when such acts cause no actual harm to any person whatsoever. It is undeniable that a society’s moral judgment must play some role in determining the extent of its criminal laws. However, “a conscientious legislator who is told a moral consensus exists,” as the legal philosopher Ronald Dworkin once wrote, “must test the credentials of that consensus.” The community’s moral standards thus cannot be arbitrarily gleaned nor can it be a product simply of inexplicable revulsion and disgust. In the case of Section 377, any reasonable analysis would show us that to regard homosexual activity as somehow immoral violates the innate natural autonomy that every person has over his or her respective sexuality. Justice Singhvi’s judgment is predicated on a bizarre belief that the only point of a democracy is to accept the majority’s verdict. But, as is evident from any sensible reading of the Constitution, democracy demands something more than the enforcement of the popular will. It requires a commitment, among other things, to our bill of rights, specifically to Part III of the Constitution.

Although the Supreme Court has already once refused to review its judgment in Koushal, in February this year it agreed to list a batch of curative petitions — which question the correctness of its decision — before a Constitution Bench of five judges or more. Now, with the curative petitions still left undecided, a group of five individuals has once again approached the Supreme Court questioning the law’s validity. On the face of it, the timing of this new challenge might appear curious, given the pendency of the curative petitions. But regardless of any concerns over strategy, the issue’s implications remain gravely significant. After all, the questions raised in the new petition concern individuals who have each been treated as an outcast by a society that purports to be equal.

A rise in homophobia

What’s more, since the judgment in Koushal, there has been a rise not only in homophobia but also in instances of an abuse of the process of the law contained in Section 377. Simultaneously, there have been repeated efforts made by the present ruling dispensation to further perpetuate the law’s deeply damaging effects. Among other developments, at least two private member’s bills moved in the Lok Sabha by Shashi Tharoor, which sought decriminalisation of homosexuality, were met with predictably wicked defeats. It is also worth considering that although the referral to a Constitution Bench of the curative petitions offers a glimmer of hope, the chances of their success, given the court’s usually guarded approach to such challenges, are terrifyingly slim. Viewed thus, the new petition questioning the validity of Section 377 — which was referred by a two-judge bench to the Chief Justice, for him to decide whether it could be heard in conjunction with the curative petitions — assumes particular significance.

Given the appalling consequences of the Supreme Court’s judgment in Koushal, here, therefore, is a fervent plea to the Chief Justice of India: it is imperative that a Bench of five judges or more is constituted as expeditiously as possible to rehear the challenge to Section 377, made by the clutch of petitioners both old and new. For, a failure to annul the Supreme Court’s verdict in Koushal would only perpetuate what is really a gross miscarriage of justice. Ultimately, the court’s legitimacy as a vital pillar of our democracy depends on its ability to nullify popular will when the decisions of the majority transgress the Constitution’s guarantees. By reversing Koushal, the court can help usher India into a more equal future, where the tyrannical belief of some does not deny to any person the right to be treated as an equal member of society, and the right to enjoy the Constitution’s foundational liberties.

Suhrith Parthasarathy is an advocate practising at the Madras High Court.