Looking backwardhttps://indianexpress.com/article/opinion/columns/looking-backward-2/

Looking backward

On Section 377,the problem is not just what the Supreme Court didn’t say,but also what it did

On Section 377,the problem is not just what the Supreme Court didn’t say,but also what it did

When our Supreme Court rules on constitutional questions,we expect it to look at substance and not form. To borrow from Justice Vivian Bose,we expect it to “[look past the mere verbiage of the words and penetrate deep into the heart and spirit of the Constitution.” Past decisions tell us that the SC boldly embraces its core function of interpreting the Constitution,while protecting individuals and minorities that have no recourse when their fundamental rights are violated.

The decision in Suresh Kumar Kaushal vs Naz Foundation is deeply disappointing to those who have faith in the SC. Here is a judgment dismissive of the “so-called rights of LGBT persons”,but the reasoning as to why their rights,conferred by the Constitution and confirmed by the Delhi High Court,are not vitiated by Section 377 of the Indian Penal Code is woefully inadequate or conspicuously absent.

Let us,however,leave aside what the court has failed to consider. Let us forget,for a moment,its failure to grasp the social meaning and implications of reattaching the labels of “unnatural” and “criminal” to sexual expression lying at the heart of same-sex love. Instead,let us analyse how the court failed in its constitutional duties and diluted its institutional legacy.

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The first question is whether the SC was correct in passing the buck to the legislature,observing in the last paragraph that it was free to consider the question of whether Section 377 should be amended or deleted. In our view,this move can be traced back to the judgment’s opening gambit. Here the court states that laws are presumed to be constitutional,based on the “premise that the legislature,being a representative body of the people and accountable to them,is aware of their needs and acts in their best interest within the confines of the Constitution.” The fallacy here lies in the fact that the court has left the question of whether Section 377 should be retained to the majoritarian legislative process,while in the same breath observing that the LGBT community forms a “miniscule [sic fraction of the country’s population”. What it seems to forget is that a “minuscule” minority does not have the numbers to drum up support in legislative bodies. To borrow from the US Supreme Court’s most famous footnote in Carolene Products (1938),“discrete and insular minorities” are unable to access “those political processes ordinarily to be relied upon to protect minorities”. The function of a bill of rights in any constitution (like Part III of ours) is to protect individuals and minorities from the “tyranny of the majority”,and it falls squarely in the domain of constitutional courts to enforce and protect these rights. It is strange that a court that has never hesitated to venture into the “political thicket” is now using the “presumption of constitutionality” as a justification for kicking the ball to the legislature.

Further,while concluding that Section 377 does not curtail the LGBT community’s right to equality,the court says that the provision “merely identifies certain acts which if committed would constitute an offence”,but “does not criminalise a particular people or identity or orientation”. Here,the SC is saying that the statute proscribes certain conduct in a facially neutral manner,and does not overtly target a particular group. This avoids the fact that Section 377,without an exclusion regarding private sexual acts between consenting adults,criminalises the core sexual expression of homosexual couples,as opposed to heterosexual couples,and therefore has a disparate impact. Moreover,the material placed before the court in respect of the history of Section 377 and its roots in the ecclesiastical crime of “buggery” in the UK demonstrates that the provision did,in fact,have as one of its primary aims the criminalisation of sexual relations between two men. Disparate impact,combined with discriminatory purpose,would surely be adequate to demonstrate a violation of the right to equality,especially in the absence of a rationale (which the judgment fails to identify). In looking past this,the court is essentially saying that if the core practice of a group is criminalised,this does not violate the right to equality as long as it looks like conduct is being targeted across the board,without naming the group targeted. This allows such a statute to survive on the fallacious basis that the provision applies to everyone. Neutral form,it seems,passes constitutional muster regardless of whether a statutory provision is,in substance,discriminatory in purpose and impact.

Most disturbing,perhaps,is the vision of our Constitution that the Kaushal judgment exhibits. The same judge who,in Satyawati Sharma (2008),observed that a “legislation which may be quite reasonable and rational at the time of its enactment may with the lapse of time and/ or due to change of circumstances become arbitrary,unreasonable and violative of the doctrine of equity”,has stated in Kaushal that the SC is not empowered to annul a law merely because of changed social perceptions about the legitimacy of the law’s “purpose” and “need”. He seems to have discarded the idea that a constitution is (in Laurence Tribe’s words) a “transtemporal” document,containing principles that,over time,are interpreted based on the evolving understanding of successive generations. We can only hope that the SC,in coming days,seizes the opportunity to correct its constitutional vision,looking ever forward instead of regressing.

Lahiri practices law in Delhi,and assisted in representing a group of academics intervening in this case. Bhandari is a graduate student at the Blavatnik School of Government,University of Oxford