ON 11 DECEMBER, the Supreme Court of India delivered a devastating verdict confirming the criminalisation of consensual sexual acts “against the order of nature”. The case, Suresh Kumar Koushal v. Naz Foundation, on appeal from a visionary Delhi High Court ruling, offered the court an opportunity to usher India into a new era of enriched civil rights. Instead, Justice GS Singhvi’s judgement, which garnered the silent concurrence of his brother judge SJ Mukhopadhaya, evoked memories of the court’s darkest moment, when, during the national emergency imposed in 1975, it infamously ruled in the “Habeas Corpus” case that fundamental rights—including the right to life—could be suspended during such emergencies. Singhvi’s judgment, delivered on his last day as a judge, also validated the terrifying proposition that a person’s right to govern how he or she lives is subject to the state’s ability to discriminate at will.
In July 2009, the Delhi High Court sought to extricate Section 377 of the Indian Penal Code (IPC), the colonial-era law under challenge, from its entrenched arbitrariness. The law seeks to punish with imprisonment for life or for a term of up to ten years any person who voluntarily has “carnal intercourse against the order of nature with any man, woman or animal”. Over the years, the term “against the order of nature” has been interpreted in a manner that includes all penile-non-vaginal sexual acts. Although in theory the provision is applicable to persons of all sexual orientations, it criminalises, without mitigation, every penetrative sexual act between two men. The effect of this discrimination—as Naz Foundation (India) Trust, the petitioner in the Delhi High Court, successfully argued—is a profound vilification of LGBT communities in Indian society. Now, four years later, the Supreme Court has reversed this verdict by way of acute moral proselytisation, and has infused its own sense of virtue into the constitution. The Delhi High Court, Singhvi wrote, was anxious to “protect the so-called rights of LGBT persons and to declare that Section 377 violates the right to privacy, autonomy and dignity”. These matters, according to Singhvi, were best left to the parliament. “The competent legislature,” the judge wrote in conclusion, “shall be free to consider the desirability and propriety of deleting Section 377.”
This illusory appeal to democratic principles that espouse parliamentary supremacy is, however, misinformed, and contradicts India’s constitutional structure. Our country’s parliament, unlike Britain’s, is not sovereign. Its ability to make laws is subject to the constitution’s parameters, chief among them Article 13, which forbids legislatures from enacting laws that contravene fundamental rights. Section 377, which effectively criminalises homosexuality, is a classic case of discrimination. The Supreme Court, in allowing this perversely illegitimate provision to stand, has abdicated its foundational responsibility and struck a hammer blow against India’s constitutional philosophy.