By its ruling on gay sex, the Supreme Court has refused to engage with Babasaheb Ambedkars notion of constitutional morality that restrains the majority from imposing its notions of morality on the minority, the countrys premier law school here has noted.
Expressing deep disappointment at the ruling, the Student Bar Association of the National Law School of India University here said in a statement that the judgment also clearly violates the principle of inclusiveness which has been articulated by Jawaharlal Nehru as “the heart of Indian Constitution”.
“We believe that the Supreme Court, the guardian of our fundamental rights, has given a retrograde judgment by denying members of the LGBTQ community their rights as guaranteed by the Constitution of India. The judgment has implications for heterosexuals as well as it would criminalise certain consensual sexual behaviour that is classified as against the ‘order of nature’,” the NLSIU Bar Association said.
This judgment is notably at variation with the Supreme Court’s own jurisprudence giving a liberal construction to the fundamental rights enshrined in the Constitution, it said.
The judgment, it said, is problematic on several counts. The apex court has failed to show any rational nexus between the classification of certain sexual behaviour as “unnatural” and the legislative object that would justify criminalizing such behaviour.
The court has also overlooked the fact that Section 377 of the Indian Penal Code was introduced by the British and not the Indian people, over 153 years ago. It is to be noted that Britain decriminalised homosexuality 46 years ago, in 1967, the statement said.
The government of India, it pointed out, had refused to appeal the decision of the Delhi High Court in Naz Foundation v. NCT of Delhi in 2009, and urged the Supreme Court to consider changing values of society as opposed to Victorian notions of morality.
Despite this, the court has relied on a presumption of constitutionality and claimed that 200 prosecutions under this section are “not enough” to declare the provision unconstitutional, the NLSIU association said.
It said the court also does not acknowledge the blackmail and harassment that is legitimised by Section 377, claiming that mere abuse of discretionary power does not make the power itself unconstitutional. Moreover, the ambiguity of the impugned section, which is responsible in part for the abuse of power, has not been sufficiently dealt with by the court.
The bench cited a long line of judicial precedents that clearly involved nonconsensual or underage sexual infractions and yet has refused to read a requirement of either minority or a lack of consent into the penal provision.
Finally, the court has failed to substantially engage with the right to privacy, which is an integral facet of Article 21 of the Constitution, it said.
The Delhi High Court judgment, it pointed out, has been considered to be a landmark in India as well as around the world for its furtherance of the rights of the LGBTQ community and human rights in general. Over the last four years, it has made a remarkable difference in the acceptance and mainstreaming of queer sexualities throughout the country.
In contrast, the Supreme Court judgment has been condemned around the world, including by the UN High Commissioner for Human Rights, who referred to it as a “significant step backward for India”.
The Dec 11 Supreme Court ruling, the NLSIU said, joins several earlier judgments which are infamous for their violation of the guarantee of life, liberty and equality embodied in the Indian Constitution.
Moving beyond this decision will undoubtedly be difficult, not just for the LGBTQ community but for everyone in the country who believes in human rights, it warned.