Two months ago, on the 11th of December 2013, the supreme court (that is, the highest judicial authority) of India came to a decision (full text here in pdf format) on a very important case: to invalidate or not an earlier (2009) decision from a lower court, that held a 150-year-old law (from the British collonial era) as invalid.
The case is important because the old law, called “Section 377”, although ambiguous was interpreted to mean that homosexuality in India is illegal. The 2009 decision then, which invalidated 377, was hailed as a victory for sexual freedom.
The supreme court on December 11th overturned this decision. This has been received by the Western press with anger and claims of homophobia by the court. See here (“shocking decision”), here (“Supreme Court says gay sex is a criminal offence”) and here (“A surprising disappointment from judges with a progressive record”), among many many others.
This view is both lazy on the journalist’s part and completely wrong.
The judgement cites various sections of the Indian constitution, for example:
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
They also cite a book on the constitution :
Popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of “morality” that can pass the test of compelling state interest, it must be “constitutional” morality and not public morality.
The argument of the learned ASG that public morality of homosexual conduct might open floodgates of delinquent behaviour is not founded upon any substantive material.
Does this sound like a decision driven by homophobia ? Not really !
Why did they reach this decision then ? Here’s why:
while the High Court and this Court are empowered to review the constitutionality of Section 377 IPC and strike it down to the extent of its inconsistency with the Constitution, self restraint must be exercised and the analysis must be guided by the presumption of constitutionality. After the adoption of the IPC in 1950, around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 IPC belongs. The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate. However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision.
In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.
In plain English, they say that only the parliament, and not the courts, have the right to create and change laws. The parliament has thought about the issue, but did not change or delete the law; therefore if they were to invalidate the law, the courts would be overriding the parliament. And that’s not right in any democracy.
Even so, they practically beg the parliament to delete the law forever:
While parting with the case, we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.
That’s a judge’s way of saying “guys, seriously now, about time you scrap this law, isn’t it ?” as directly as possible.