The Nature of Order

On 28 January 2014, the Supreme Court of India rejected a petition filed by the government to review its decision on section 377 of the Indian Penal Code. I suppose a curative petition comes next, but this time I won’t be getting my hopes up too high.

As it stands, the section reads:
377. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.

Indian courts have interpreted the phrase 'against the order of nature' to be inclusive of any form of penile non-vaginal intercourse.

In response to the writ petition filed by NAZ Foundation, Delhi High Court had this to say in 2009:
We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.
The recent Supreme Court judgement overturned this 'reading down' of the section.

The general outcry that the Supreme Court verdict has provoked in many corners of the country – including some totally unexpected nooks of my own family - looks quite heartening. What has been less encouraging, on the other hand, is the string of messy attempts made by both sides at finding non-existent silver linings and consolations. 

A lot of my friends have remarked, for example, that ‘the law is not about homosexuals or transsexuals or any particular group, it’s not about love or relationships; it’s just about the sexual act.’

This is true. But it is absurd to pretend that sex is not a natural part of love and relationships. It is equally absurd to imply that since the law is only about sexual acts, it isn’t unfair or bigoted.The only ‘type’ of people who will be able to afford supporting this decision without a personal cost, will be heterosexuals. Homosexuals, gay men in particular, are out by definition. Moreover, high courts have, in the past, ruled that so long as there is a possibility of intercourse ‘within the order of nature’, everything else two people do can be looked at as a prelude to it, like a kiss. But since with people of the same gender, there is no way it can ever lead to natural intercourse, homosexual intercourse will always fall under ‘unnatural offences’.

No matter how much we would like to pledge solidarity and show support, we are not all in this together.

Or

‘It could’ve been worse. There are countries that put people to death for being gay.’
I’m not sure this point of view even deserves the compliment of a rational argument.

Or

‘Is this really the biggest problem facing India?’

Really, it’s not. The question is why this should be a problem at all. It’s true that the number of Indians plagued by poverty and all her sisters far exceeds the number of Indians who will be directly affected by the fate of section 377. But most of the other problems facing India don’t come with easy and fair solutions; this one does.

Or

‘The supreme court was only doing its job. It is not for them to change the law; that’s for the parliament to sort out.’

And this is the one that I find the hardest to digest. There is no question about whether or not the Supreme Court or the Delhi High Court has the authority to ‘read down’ a law if the respective court finds it unconstitutional. In fact, in such cases it becomes not just a privilege assigned to the court, but a duty. The only thing in question here is the validity, rationality, and strength of the arguments made by the Supreme Court in support of its decision. Justice Singhvi, (who, along with Justice Mukhopadhaya, upheld the laconic omni-shambles that is the original version of section 377) refused to entertain any questions or criticism on his decision, and told journalists and protestors to read the entire judgement first. So I did. And it did nothing to change my mind.

The text of the judgement maintains that there is nothing unconstitutional about section 377 because:
Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later[sic] category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification.

All it means is that courts have, in the past, been able to define what constitutes the order of nature without much fuss from anyone. And now that there is a bit of a fuss, we already have all these criteria based on nothing but precedent. Any level-headed person will realise that this isn’t a scientific classification. Or even a logical one. We can’t even be sure about the claim that nature does have any constant order to it, let alone the assertions of what is or isn’t within that order (let Jay Mazoomdaar shed some light on how ludicrous the whole notion is).  

The judgement also quotes – and then conveniently sidesteps – the requirement of substantive due process for judging the constitutionality of a provision:
In order to fulfil [sic] this test [of substantive due process] the law must not only be competently legislated but it must also be just, fair and reasonable. Arising from this are the notions of legitimate state interest and the principle of proportionality.

What legitimate state interest are we protecting by keeping sec 377 in its entirety? The text of the Supreme Court judgement, for one, does not give any further justification on the matter.

The most wonderful thing about the Delhi High Court verdict was its inclusiveness. Despite the best of intentions, I wouldn’t claim to be aware and sympathetic of all the elusive nuances and manifestations of human sexuality; and I wouldn't trust anyone who does (not least because I’ve grown up in a society that doesn’t like to talk about it. I didn't know what 'gay' meant till I was fifteen, and I still don't know how to say it in colloquial Marathi or Hindi). There is just so much that we don't understand yet. But the 2009 judgement surmounted this problem by refusing to get bogged down in definitions we don’t seem to be able to agree on. The key words here are ‘consensual’, ‘adults’, and ‘in private’. 

What state interest does it serve to criminalise sexual acts between consenting adults in private, apart from keeping a few religious zealots happy? What exactly is this order that the Supreme Court wants to maintain? What disorderly hell did the Delhi High Court judgement break loose? In spite of being marginalised, humiliated, and discriminated against for years, when have homosexuals, bisexuals, or transsexuals - as a group - ever threatened Indian society? The only real threat involved is the imagined threat of what reactions the decision might invite from people like Suresh Kumar Koushal, from groups like Trust God Missionaries, Revolutionary Manuist Front, and All India Muslim Personal Law Board, and from political parties like BJP . 

The text goes on to defend the judgement by saying that:
a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.

And also that: In its anxiety to protect the so-called rights of LGBT persons the High Court has relied on judgements from other countries which cannot be adopted blindly in India. The staggeringly tactless example given in support of this argument is that of the fact that India still employs capital punishment when several ‘western’ countries do not.

Are these really the words of people who are willing to empathise with the plight of sexual minorities? Why doesn’t the document even once acknowledge the need to rethink the law, however strong the presumption of constitutionality may be? How many abused citizens does it take to deem a provision unconstitutional? Surely even one is one too many. Not to mention - well, in fact, the National AIDS Control Organisation (NACO, Ministry of Health and Family Welfare) did mention this to the Delhi HC in the form of an affidavit filed in 2006 - the effect a law like this can have on public health. 

I cannot pretend to be competent enough to take on the biggest judicial body in the country. I’m well aware that a few rounds of thorough lawyering might easily render this post limp and useless. My intention is not to win an argument. The argument is over. But the Supreme Court verdict is only a reflection of where we stand as a society, and how much we really value tolerance and diversity. 

The question is how uncomfortable we, the privileged, are willing to get, in order to do the minimal amount of right by those who have spent years and years outside the convenient borders of norm that we tend to draw around ourselves. I don’t doubt that one day India will learn to be happy with all manner of LGBTQ people and behaviours. Of course we will. The question is how quickly and gracefully we can pull off that transition.

Links:
Constitution of India
Supreme Court Verdict (2013)
Delhi High Court Verdict (2009)
NACO affidavit (2006)