Some more on section 377

Following the previous post on section 377, RK a long time reader and occasionally an agent provocateur, asked me why blame the Supreme Court for the legislature’s folly? Well, he does ask a legitimate question.

First, I must start by sort of summarising what I wrote earlier. All of us may have our views on homosexuality, we may be repulsed by it, be scared, be comfortable, believe it is wrong, believe it is a sin and so on and so forth. My point simply is, why should it be a crime? Someone may not like my eating beef or chicken or if he is a Jain, garlic. But, it is my choice and, as yet, I am not committing a crime eating garlic. Why should the same not be true of homosexuality? Okay, I may be drawing a rather bizarre picture, but I am sure you get the concept. Personal likes or dislikes do not mean that the matter should be a crime.

Now getting down to trying dealing with RK’s question. Here are a few points, none of which are necessarily sequiturs to each other.

1.     The Supreme Court is the highest Court in India. In 95% of cases the Supreme Court does not exercise original jurisdiction. This means that you cannot file a case directly in the Supreme Court. The Supreme Court is a court of appeal. This necessarily means that in 95% of cases that the Supreme Court hears, one, if not two judgements, that have previously been pronounced by a lower Court. This means that the Supreme Court has the benefit of the dispute already having being dealt with before reaching hearing. In this case too, the Supreme Court was hearing an appeal arising out of the judgement of the Delhi High Court. The Delhi High Court had by a detail judgement declared section 377 as unconstitutional. So, the Supreme Court could have merely upheld what the Delhi High Court had said. But, the Supreme Court chose not to do so.

2.    Yes of course the Supreme Court is not bound to strike down an incorrect law. It may well ask the legislature to do so, as it has done in this case. But, the point is, that the Delhi High Court had already as they say `done the needful’. So, what was the reason to overturn the Delhi High Court order and once again declare section 377 as Constitutional? I can understand the Supreme Court taking this kind of view if the Delhi High Court had taken a similar view. But, this decision of the Supreme Court is rather bizarre.

3.  The Supreme Court’s opinion that the law should be amended by Parliament would have been understandable if this was the consistent approach that the Supreme Court took. If, for example, as a matter of precedence, the Supreme Court rarely interfered and struck down laws, and asked the Parliament to modify laws, on a consistent basis, this approach of the Supreme Court would have seemed consistent and sensible. This too is not the case in this judgement. The Supreme Court has declined to intervene and strike down section 377 despite having intervened and struck down laws often in the past.

4.    As a corollary to (3) above, in several cases, as and by way of example, in the 2G scam, the Coal allotments, the Supreme Court has directly intervened and said that polices framed are incorrect, or illegal and have set aside a lot of existing functioning economic contracts, activities and investments. The losses caused by the setting aside of the 2G licenses, the cancellation of the coal allotments are all instances of direct intervention by the Supreme Court. In fact, one of the judges hearing the 377 case was part of the bench that set aside the licenses. So, intervening, striking down polices and laws is not something new or unprecedented.

5.    The most disturbing aspect for me is what appears to be the mindset of the two judges. This whole mindset issue is distressing. I understand that besides homosexuals themselves, the call for amendment of section 377 is most strident from liberals especially urban liberals. It is also true that the huge majority of Indians, probably the so called `Bharat’, are in some way largely homophobic. I may be stepping out on a limb here. This homophobia may stem from prejudices, half knowledge or just ignorance. Judges of the Supreme Court are supposed to be learned, and I mean that honestly. This judgement whereby they have declared homosexuality to be a crime, to my mind, shows a shockingly conservative and un-liberal and medieval mindset. This is deeply distressing.

So, did the Supreme Court act wrongly? Strictly speaking no. Did the Supreme Court act distressingly, unthinkingly, uncaringly, reveal a hideously conservative streak or mindset? In my view yes, yes, yes.