On 11.12.2013, the Hon`ble Supreme Court of India delivered a judgment which in fact turned out to be a bigger news-making event than the date of its delivery. A two-judge bench of the Hon`ble Court in Suresh Kumar Kousal and Anr. vs. NAZ Foundation and Ors., upheld the challenge posed by the Appellant to the judgment delivered on 02.07.2009 by a division bench of the Hon`ble Delhi High Court in NAZ Foundation vs. Govt. of NCT of Delhi and Ors., set aside the order of the Hon`ble High Court and further held that Section 377 of the Indian Penal Code (IPC), 1860 does not suffer from the vice of unconstitutionality. Noteworthy it is that the Hon’ble High Court in 2009 had read down Section 377 of the IPC, with the aid of following words, de-criminalizing sex between consenting adults, barring between minors, irrespective of the gender:
“We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile nonvaginal sex involving minors. By ‘adult’ we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.”
The Hon`ble Supreme Court`s judgment has underscored the ample cleavage that exists between the societal norms prevailing in our country and the western countries, notably the U.S. and has thoroughly exposed our double standards when it comes to upholding and promoting libertarian and egalitarian values in the society. While the esteemed framers of the Constitution of India did not hesitate in borrowing the chapter on fundamental rights from the U.S. Constitution and incorporated the same in our Constitution, the accredited interpreter of the Constitution has let us down in implementing the fundamental rights in the spirit of their enactment and in one stroke trampled the deserving rights of a significant number of people in the country shortly after the Senate in U.S. approved a historic gay rights bill to ban workplace discrimination based on sexual preference or gender identity. In U.S., twenty-two states and Washington, D.C., have enacted laws already to prohibit such discrimination, however, we are still debating whether such sexual preferences are even legitimate in the first place even if consensual.
Surprisingly, the Hon`ble Supreme Court chose a case involving basic human rights to remind itself about the need for judicial restraint and the concept of Parliamentary sovereignty. By holding that it is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of society having changed as regards the legitimacy of its purpose and need when the Legislature has chosen not to revisit the law for amending or deleting it, the Hon`ble Supreme Court has thrown the ball in the legislature`s court; the Government of the day, on the other hand, this time, for a change, does not want to legislate on the contentious subject and would be more than jubilant if the judiciary revisits the law and this time does not hesitate from resorting to judicial legislation. Such convenient role reversal by institutions of the state is completely bereft of any logic and does not augur well for governance of the people.
The axle of the judgment of Hon`ble Supreme Court is the finding that Section 377 of the IPC would apply irrespective of age and consent. Even if this is true, for Section 377 to apply and be invoked, the act indulged into must amount to ‘carnal intercourse against the order of nature’ which is again not defined anywhere conclusively. Neither the IPC provides a key to understanding of the phrase ‘carnal intercourse against the order of nature’ nor the judgment provides a conclusive insight. In fact, the judgment itself states that on the basis of the judicial precedents cited therein, no uniform test can be culled out to ascertain if an act amounts to ‘carnal intercourse against the order of nature’ and whether an act falls within the ambit of the said section would only be determined with reference to the act itself and the circumstances in which it is executed.
As per the IPC, voluntary carnal intercourse by a man with a woman, unless she is a minor, is not an offence, but voluntary carnal intercourse by a man with a woman against the order of the nature is an offence as per Section 377 of the IPC. The fulcrum of Section 377, thus, is the phrase ‘carnal intercourse against the order of the nature’ which as stated above is conclusively not defined. In light of such gross ambiguity, can such a penal provision be even enforced by law? Is not a statutory provision required to be specific, precise, clear and unambiguous in its language, more so when punishment can be meted out on the basis of a violation of the same? Section 377 creates a class extraordinaire with regard to those who indulge in carnal intercourse against the order of the nature from those who do so according to the course of the nature and punishes them on this basis. But, in the absence of any concrete, conclusive and settled meaning of ‘carnal intercourse against the order of the nature’, can a classification of this manner meet the test that Article 14 of the Constitution of India poses?
The judgment of the Hon`ble Supreme Court also does not deal with the aspect, and to my mind no statute or judgment can in fact, as to how the law enforcing authorities are going to detect what the two consenting adults are indulging into in private and prosecute them on the basis of that. The judgment of the Hon`ble Supreme Court is, therefore, backward looking, conservative, and overtly illogical. In a country, where law shockingly permits rape of a woman by her husband giving a complete farewell to the concept of dignity, consent and personhood, it beats my imagination as to how can it then not permit voluntary intercourse or contact by a man or woman with another man or woman, as the case may be, in whatever order they deem fit; without the state intruding into the zone of intimate relations entered into in the privacy.
The Hon`ble Supreme Court also remained oblivious to the stunning impact the reading down of Section 377 of the IPC by the Hon`ble Delhi Court has had on bringing down the HIVAIDS cases in India, Within a year of the High Court judgement, HIV/AIDS cases in India came down by over 50%. It is not without any reason that the Health Ministry has been vociferously speaking in favour of scrapping of Section 377 of the IPC altogether.
Last but not the least, as per the existing definition of Section 377 of the IPC which the Hon`ble Supreme Court has upheld, voluntary carnal intercourse by a man with another man against the order of the nature is a penal offence, but no remedy is available under the IPC in case a man indulges into involuntary carnal intercourse with another man, against the order of the nature or according to the order of the nature, even if a concrete meaning is assigned to the former subsequently.
The saffronites, in the meantime, can take heart from the fact that the highest court in Australia has also struck down a landmark law that permitted gay marriages in the capital, Canberra – regardless of which state they lived in. Down under, truly!!!