Sec 377: Why And How The SC Deems It Constitutional


Justic G S Singhvi

Justic G S Singhvi

Judicial restraint on stepping into the Parliamentary domain

The Supreme Court (SC) has refused to enter into the Parliament’s domain as essentially in a democracy, law making is a parliamentary prerogative. Here, the SC conveniently overlooked that while Parliament frames the law, it is the Supreme Court which decides on the constitutionality of that law if it gets challenged.


Since Parliament didn’t, why should we?

SC’s reasoning for its restraint on the reading-down of Section 377 was based on the lack of parliamentary intent on repealing Section 377 from the IPC through the recent Criminal Laws (Amendment) Act, 2013; wherein the IPC was last amended under immense public-media pressure after the Delhi Gang Rape. So, it simply says, that the Parliament had enough scope to amend or repeal section 377 before the pronouncement of this judgment. Since, they did not do so, why should we?


Narrow Interpretation

A very restrictive interpretation of the text of Section 377 entailed the SC with the finding that the impugned law merely identifies certain acts, which if committed, would constitute an offence and that such a prohibition regulates sexual conduct regardless of gender and sexual orientation (para 38-40). This, in my opinion, is an instance where the court has provided a very mechanical and literal interpretation of the text of Section 377, without understanding the impact that this impugned law serves on any adult in this country, who opts to engage in any form of penile-non-vaginal sexual act.


Why care for a “Miniscule” Minority?

The SC has also refused to admit the people indulging into the so called ‘carnal intercourse against the order of nature’ (i.e.people engaging into any form of penile-non-vaginal sexual intercourses) as a separate class in itself, which is its central argument on how Section 377 doesn’t violate the ‘right to equality’ (Article 14) of the Constitution (para 42). It is pertinent here to understand that the court hasn’t provided “any justification at all” on how it reached such a conclusion. Interestingly, after drawing this apparently-baseless conclusion, the court has acknowledged that:

since the LGBTs constitute a miniscule fraction of the country’s total population and that in the last 150 years there has hardly been 200 prosecutions under this impugned law, it cannot be taken as a firm ground for declaring Section 377 to be violative of the right to equality, the right to freedom of expression and the right to life and privacy (para 43).

Here, the court has purely overlooked the potential threat that Section 377 poses and how it raises a culture of silence amongst all Indians (especially the sexuality minorities) regarding the expression of their sexual freedom and love. With this unfortunate judicial approach, it seems as if the sexuality minorities are ‘second-class citizens’ in India, for whom getting thrashed by the tyrannous laws of the majority is so obvious.


No Violation of Privacy

The SC in its judgment says that the Section 377 doesn’t violate the right to privacy that is guaranteed by the Constitution and the several International Human Rights instruments, to which India is bound. The basis behind this conclusion is simply that police harassment or other forms of state atrocities are not connected to the sole vires of Section 377. It is here that, the court has safely dropped the ball into the parliament’s court by saying that “It might be a relevant factor for the Legislature to consider while judging the desirability of amending Section 377 IPC” (para 51).

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