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1 day ago - Section 377. Opinion » Comment December 12, 2014 Updated: December 12, 2014 02:45 IST Limiting the impact of Section 377 Chintan Chandrachud Comment ...Opinion » Comment
December 12, 2014
Updated: December 12, 2014 02:45 IST
Limiting the impact of Section 377
Comment
(6) ·
The Hindu
THIRD WAY OUT: “While the Supreme Court dismissed a review petition
seeking reconsideration of its judgment, the option of a legislative
repeal is a bleaker prospect.” Picture shows members of the Delhi Queer
Pride Committee in 2010. Photo: Rajeev Bhatt
Two difficult options have been considered so far to nullify the Supreme Court’s decision on Section 377. But there is another, more subtle, option on the table
December 11, 2014 marked one year from the day on which
the Supreme Court delivered one of its most heavily criticised judgments
in recent history: Suresh Kumar Koushal v Naz Foundation. (Koushal).
The court’s order in that case is only too well known— it had reversed a
Delhi High Court judgment reading down Section 377 of the Indian Penal
Code (which criminalises ‘carnal intercourse against the order of
nature’), effectively placing India’s LGBT community in the shadow of
criminality and continued social stigmatisation. The judgment first
extended a rebuttable presumption of constitutionality to an almost
conclusive presumption that legislation which is validly enacted cannot
be struck down, second it failed to consider whether the separate
legislative treatment of ‘carnal intercourse against the order of
nature’ was based on intelligible grounds and third, it seemed to
ascribe a numerical de minimus for the enjoyment of fundamental rights.
Nullifying Koushal
So
far, scholars and activists have considered two options to nullify
Koushal: one, a judicial reconsideration of the decision and two, the
legislative repeal of Section 377. As it stands, both of these seem
difficult. In February 2014, the Supreme Court dismissed a review
petition seeking reconsideration of the judgment. A second review
petition (called a ‘curative petition’) is pending, and placing bets on
its outcome is a task best left to daredevils. Legislative repeal is a
much bleaker prospect, given that the Bharatiya Janata Party and its
associates have sent mixed signals on the issue. It is also widely
perceived that legislative repeal will jeopardise an important segment
of the party’s conservative political constituency — a price that it is
probably unwilling to pay. But there is a third, much more subtle,
option on the table — narrowing the impact of Koushal through subsequent
decisions.
Two judgments indicate that this option is silently under way. In National Legal Services Authority v Union of India,
the Supreme Court was tasked with deciding whether the right to
equality and other fundamental rights required state recognition of
hijras and transgenders as a third gender for the purposes of public
health, welfare, reservations in education and employment, etc. In a
remarkably broad ruling, the court held that transgenders should be
treated as a third gender and that they should be given the right to
gender self-identification. Without overruling Koushal, the court
undercut some of its findings. First, it observed that even though
Section 377 was facially gender neutral, it had a disproportionate
impact on certain communities. Second, it rejected the numerical de
minimus for the enjoyment of fundamental rights set up by Koushal,
observing that transgenders, “even though insignificant in numbers,”
enjoyed the same fundamental rights as everyone else.
Gujarat High Court’s judgment
In another scarcely reported, but no less significant, judgment (Kirankumar Devmani v State of Gujarat),
the Gujarat High Court dealt similar setbacks to Koushal. The question
before the High Court was whether the state was justified in refusing to
grant tax concession for a Gujarati film depicting the life of a
homosexual. In a carefully reasoned judgment, the court held that the
state’s refusal violated the right to equality and the freedom of speech
and expression. The Koushal judgment arose for the court’s
consideration, since the question then was whether the state was
justified in refusing concessions to a film that encouraged an “illegal”
activity. The High Court’s observations, which stand in stark contrast
to the Koushal prognosis, are worth quoting: “Even a person with
homosexual preference as human being [sic] has right to life and liberty
guaranteed under Article 21 of the Constitution… In the constitutional
scheme of things that we have adopted in our country, plurality of
ideologies and different view points are accepted and respected.” The
court was, of course, conscious that judicial discipline demanded that
the Koushal judgment be upheld. Quite masterfully, it acknowledged that
“carnal intercourse” was an offence, but did not go into the question of
whether it was morally wrong and would “leave it at that.”
The
High Court then capitalised on the poor reasoning of the judgment in
Koushal to narrow its precedential value, holding that the Supreme
Court’s judgment rested significantly on the presumption of
constitutionality and did not cast light on the “subject matter” of
homosexuality in general. It concluded by saying that although it
neither “endorsed nor deprecated” the ideas in the film, the state’s
failure to grant the tax concession was unconstitutional.
These
two judgments suggest that the imperfect legal reasoning adopted in
Koushal makes it highly susceptible to narrowing. The silent
disintegration of judgments — as an alternative to the more hard-edged
options of judicial overruling or legislative repeal — is a common
phenomenon. In the United Kingdom, the House of Lords gradually
retreated from its controversial decision in Pepper v Hart (allowing
parliamentary proceedings to be cited for the purposes of statutory
interpretation). In the United States, the Supreme Court under Justice
John Roberts has narrowed precedents in many areas, including abortion,
campaign finance and affirmative action.
Richard
Posner, the renowned American jurist, describes this as “boiling the
frog.” The unpleasant analogy is that if you want to boil a frog, you
put it in warm water and gradually turn up the heat — if you were to
drop it in boiling water, it would jump out at you. Koushal’s
emasculation has begun. The water may not be boiling — but it is warm.
(Chintan Chandrachud is a PhD candidate at the University of Cambridge.)
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Going against the tide of history
When fair is foul and foul is fair
When will we grow up and learn to mind our own business, let people live the life they want to its their life and their choice? Who are we to intrude? At least they are not forcing people to live life their way or going out raping people. Life as it is already tough for them, let's not make it any worse.
சங்கர்
How
come people at the top in the Govt. and in the Judiciary be
unreasonable and illogical? We need a system which enables enlightened
people to reach the top decision making positions. If people at the top
are not enlightened, the country won't move in the right direction. But
it seems for now, we are only going to move in the "right wing"
direction.
Homosexuality
is certainly not a criminal activity. It should therefore be
decriminalised. But We forget to talk about bisexuality which is
obnoxious. This should certainly be discouraged. While homosexual
persons can be sympathised the bisexuals are actually polluting the
society. This kind of sexual freedom can be detrimental to the society
and we should learn to distinguish between the two and should not
misplace our support.
Koushal's
judgment took us to back to Victorian age when everything was done
under covers. The Gujrat judgment needs to be applauded.
A well dissected article taking the bull by its horns.
homosexual
or heterosexuals...they are first human beings. They have every right
and freedom to live as they want just like majority of us have.
criminalizing them based on their sexual orientation is not a right
approach for a progressive community like in India. Why should religious
leaders or politicians want to interfere in their personal lives as
long as they live happily with their partners with mutual consent.
Movies should stop steriotyping gays and lesbians in bad picture. I
vote in favor their rights infact for the rights of human beings.
Hariharan Pv
at Sumangali Seva Ashrama, Bangalore
An
interesting, open and thought provoking article by Chnitan Chandrachud,
on a difficult subject. Thank you THE HINDU for presenting this, an
important subject of modern India. The Guiarat High Court's observation:
"“Even a person with homosexual preference as human being [sic] has
right to life and liberty guaranteed under Article 21 of the
Constitution… In the constitutional scheme of things that we have
adopted in our country, plurality of ideologies and different view
points are accepted and respected.”" It hoped that more comprehensive
laws would soon come in place so that True Democracy for ALL human
beings would be the order of the day in India
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