SC judgment: The gaps in logic

Much of the discussions on Facebook and other social media have been hysterically critical of the SC judgment on Section 377 of the Indian Penal Code and some of them are abusive of the judges.

In order to understand what precisely is the issue, and because, as a lawyer, I have a pathological desire to read up stuff before making up my mind, I read the judgment from end to end. Before I go ahead and give my views on it, I wish to say that I have absolutely nothing against consenting adults engaging in sexual acts of their choice. I am a true blue liberal in my views on sex, and am an atheist, to boot. This is just my take on the judgment, shorn of hysteria, alarmism and abuse.

First, the Supreme Court has not made any remark that constitutes a condemnation of sexual acts whatever they might be. Second, the Supreme Court has made the following points in the judgment:

(a) All laws come with the presumption that they are constitutional and self restraint should be exercised by the court when it comes to examining the constitutionality of laws, lest it becomes a trespassing into the domain of the legislature (Read Page 52 and 60 of the judgment).

(b) When a law is challenged on constitutionality, the presumption is that it is constitutional and not the other way around (page 57 and 60 of the judgment)

(c) If a law is considered unconstitutional, only that part that is unconstitutional is to be severed and so declared (page 60 of the judgment).

(d) The court can resort to 'reading down' (restricting its interpretation) a law to render it constitutional, but in that direction, it cannot change the essence of the law or create a new law that is in its opinion more desirable (page 61 of the judgment)

Using these principles, the Supreme Court then undertook an examination whether Section 377 was unconstitutional as being violative of Article 14 (right to equality) and Article 21 (right to life).

On the issue of the right to equality, the Court concluded as follows:

(a) An examination of various decided cases shows that there is no definition of 'carnal intercourse against the order of nature', which is criminalised under Section 377. (Page 77)

(b) Section 377 does not specifically criminalise anybody of a particular identity or orientation, but criminalises certain acts of 'carnal intercourse against the order of nature' which, as stated above, is also not specifically and further defined (Page 77). However, carnal intercourse against the order of nature, as interpreted in many cases in the past, has included homosexuality and bestiality.

Third, it is from that point onwards, that the Court comes to some conclusions with which I do not agree.

In Para 40, the court states that the respondents 'miserably failed' to produce evidence of discriminatory attitudes against sexual minorities. It states that the details produced by the state and the respondents are wholly insufficient to come to the conclusion that sexual minorities face discrimination and harassment.

That is a bit of a value judgment, I thought.

Then in Para 42, the court says that those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature, constitute two different classes of people and therefore, a law that prescribes differential treatment between the two is not violative of Article 14. I fail to see a consistent approach in the Court's views at (a) and this interpretation.

The court then goes on to examine whether Article 377 violates Article 21 of the constitution. In doing so, it comes to certain conclusions, with which again, I do not agree.

In Para 51, the SC disagrees that Section 377 has been used to perpetrate violence, torture and blackmail of LGBT groups. In a really curious twist of words, the Court states that 'this treatment (meaning torture, harassment and blackmail) is neither mandated nor condoned by the section and the mere fact that the police might misuse it is not ground enough to declare it ultra vires!

I disagree completely with this interpretation for two reasons.

(a) I have not seen any other law that mandates torture, harassment and blackmail in the body of the section. So why is that quoted as a reason for placing Article 377 outside the purview of a review?

(b) I thought the fact that police misuses the law routinely is a serious infringement of citizens' right to dignified life, guaranteed by Article 21!

Finally, in Article 52, the Supreme Court takes another rather dubious stand. It says that the fact that the Delhi High Court has referred to judgments of other jurisdictions (meaning foreign court decisions) does not mean that these can be applied 'blindfolded' to the Indian situation. I find that very curious, for two reasons.

First, there are any number of judgments of the Court that extensively quote from American and British judgments,as if they were the law of the land. Second, merely stating that foreign judgments cannot be applied blindfolded, does not mean that they should not be examined with an open mind. The Supreme Court has not pointed out anything that is wayward or so different in the judgments of foreign courts relied upon by the Delhi High Court, as to make them totally unacceptable in the Indian context.

Finally, the Supreme Court ends by saying that while they decline to strike down the judgment, the competent legislature shall be free to consider the desirability and propriety of amending Section 377.

In conclusion, I think its not a well-crafted judgment, given the gravity of the subject matter. I find that judges have lost the art of writing good judgments. The facts are quoted extensively, as also lawyers' arguments (In fact, Nariman's arguments in this case are really brilliant). Then several judgments are quoted in support of a point or against it.

But in the ultimate analysis, I find that the Supreme Court is unnecessarily economical with words when pronouncing its own interpretation of earlier judgments and consideration of the arguments of lawyers. It is thus no surprise that there are major jumps in logic, in its reasoning.

However, I suppose now the only recourse is to move Parliament to amend the law. Let's see what happens. Given the mood amongst young voters, will the BJP risk unpopularity and go the conservative Hindutva way, and oppose the amendment? If they do, the Congress might attempt to regain ground by taking a liberal stand.

Nothing, in the end, including what people do in bed, is beyond politics!