Failing the minority

Failing the minority

The SC’s conclusion that Section 377 does not suffer from unconstitutionality is legally unsustainable and morally indefensible.

Navroz Seervai

The SC’s conclusion that Section 377 does not suffer from unconstitutionality is legally unsustainable and morally indefensible.

The Supreme Court’s judgment in Kaushal vs Naz Foundation is deeply flawed and manifestly erroneous. The judgment tramples on the fundamental and human rights of LGBTs,deprives them of their right to privacy,prevents free choice,renders them hostage to bigoted persecution and invades the realm of the personal at the deepest level — that of love. It also proclaims to the world that India has descended into medieval barbarism.

The fundamental question to be decided was: can the consensual sex of adults (including LGBT sex) fall within the scope of Section 377 of the Indian Penal Code,and if so,whether Section 377 would not to that extent be ultra vires Articles 21,14 and 15 of the Constitution? The Delhi High Court answered this question in the affirmative,in a brilliant and well-reasoned judgment. It discussed several constitutional principles and the extent of the judicial power to declare an act unconstitutional. Having done so,it employed the principle of severability in enforcement,in effect reading down the section,and declared that Section 377 in so far as it criminalises consensual sexual acts of adults in private violates Articles 21,14 and 15. Whilst fulfilling its constitutional duty,it recognised the limits of judicial review,acknowledged the separation of legislative and judicial powers and respected the presumption of constitutionality. As a result,Section 377 remains on the statute book for all other purposes and the offences contemplated therein.


The SC failed to confront,let alone answer,this fundamental question. It shirked its constitutional duty; worse,by misreading the high court judgment,ignoring its careful reasoning and unjustly imputing to it judicial overreach,the SC held that the high court’s declaration was legally unsustainable. Quite to the contrary,it is the SC’s conclusion that Section 377 does not suffer from the vice of unconstitutionality that is legally unsustainable,apart from being intellectually and morally indefensible. These flaws are sufficient to urgently seek review and have the judgment set aside.

The SC,whilst referring to the voluminous data and material placed before the high court,none of which was disputed or countered,ignores all of it so that it can conclude that the Naz Foundation’s petition was “singularly laconic”. The judgment unjustifiably holds that Naz Foundation “miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the state agencies towards sexual minorities and consequential denial of basic human rights to them”.

The court also dismissed the affidavit of the ministry of health and family welfare,department of AIDS control,and the statistics contained therein,holding that these were “wholly insufficient” for finding that LGBTs were being subjected to discriminatory treatment. The court’s deliberate denial of such discrimination is glaring,for the court itself could have taken judicial notice of facts within the public domain and matters of common knowledge.

Those supporting the cause of the LGBTs and the Union of India placed uncontested data showing the substantial numbers who were affected by the discriminatory application of Section 377. The Delhi High Court recognised this fact when it described this community as being “a sizeable section of society” and “a significant group of the population”. The SC,in one of its most disingenuously worded paragraphs,wrongly and without any reason,rested its conclusions by referring to the LGBT community as “a miniscule [sic fraction of the country’s population”.

The most disturbing aspect of the judgment is the court’s approach to the fundamental rights of LGBTs,and by implication,of all minority communities. The Delhi High Court had upheld those rights and in doing so had relied on judgments and scholarly literature,both Indian and foreign. The SC repeatedly relies on foreign judgments when it serves its purpose. It dismisses these foreign judgments on the false premise that the high court had blindly applied such judgments for deciding the constitutionality of Section 377.

Sixty-three years after the Constitution was written,the judges discovered that these articles contain an exception: they are not for minuscule minorities. For them,these rights are paper rights,“so-called rights”,and woe to the minority that invokes such rights. J.M. Keynes,in his withering indictment of the men of Versailles,described the treaty as conceived “without nobility,without morality,without intellect”. It is the perfect epitaph for the judgment in Kaushal.

The writer is a senior lawyer based in Mumbai