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India: ‘The Road to Equality has Never Been Straight’— Supreme Court’s Verdict on S 377 - Rukmini Sen

26 December 2013

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One of the posters of the campaign against 377 carried the sentence in the title within quotes. Notwithstanding the fact that there may be ideological questions raised about whether there should at all be a sexual category called ‘straight’, I use this poster quotation in the literal meaning to indicate how meandering, complex and conflictual -as opposed to smooth, unidirectional, straight - a legal journey it has been . But I use it also in the symbolic meaning that the struggle for equality is for everyone, irrespective of one’s sexual orientation. One of the first impressions one gets after going through all the 98 pages of the SC judgment on S 377 (Suresh Kumar Koushal v Naz Foundation) is that this is a good text for teaching how not to write a judgment. A substantive part of the first section of the judgment goes back to the Delhi High Court judgment and gives long quotes from it. This seems unnecessary to the least and makes the reader wonder whether there is nothing really substantive for the Supreme Court to offer. The second section of the judgment details the arguments made by lawyers on the Special Leave Petition by Suresh Koushal, who claimed having a moral responsibility to protect cultural values of Indian society, interveners who made Interlocutory Applications and new petitioners who were not parties before the Delhi High Court. The final section of the judgment aims to prove that S 377 is not a violation of Article 14, 15 and 21 of the Indian Constitution. It asserts that S 377 does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court (in 2009) is legally unsustainable. It is this last section that the following part of the paper will focus on.

According to the Supreme Court, lesbians, gays, bisexuals and transgenders constitute a ‘miniscule fraction’ of the country’s population and in the last 150 years, less than 200 persons have been prosecuted under S 377. Therefore that cannot be a ‘sound basis’ to declare the section ultra vires of Constitutional provisions of 14, 15 and 21. Since when did the language of minority start to dominate the judiciary of a democratic nation-state? It’s only appropriate to quote Siddharth Narrain here, ‘Your Lordships say we are a miniscule minority. We say your role, as a guardian of the Constitution is to protect the rights of minorities, however itsy bitsy, teeny weeny, itty-bitty they may be’ ( Agreeing that S 377 does not mandate the police to blackmail, harass or torture persons, especially those belonging to LGBT community, the Supreme Court however goes on to state that the ‘mere fact that it is misused by the police’ does not make the section ultra vires of Constitutional guarantees. The judgment says that ‘[f]rom the decided cases in India as well as in United States of America, the principle appears to be well settled that if a statutory provision is otherwise intra-vires, constitutional and valid, mere possibility of abuse of power in a given case would not make it objectionable, ultra-vires or unconstitutional’. This is the reason why the learned court concluded that this section is not a violation of Art 14 of the constitution. Why is it so then that even if there are no clear numbers/data about the misuse of S 498 A by women, there are recommendations in court judgments as well as separate petitions to the Parliament to amend the section? Is there an implicit assumption that ‘misuse’ by women -is far more harmful than misuse by the police? Or is it that there are differential arguments because the former ‘misuse’ (if at all) challenges the ‘order’ of the patriarchal family; while in case of the the latter harassment meted out by the police is to maintain the ‘order’ of the hetero-normative patriarchy?