The Sentinel Who Will Not Protect

by Raju Ramachandran

For students of constitutional law, the “gay rights” judgment is deeply disappointing. For a judgment that was in the making for over twenty months, it leaves one with a feeling that it has been “hurried through.” For all its length, there is no detailed reasoning for overturning the High Court judgment.

Let us remember that the Court was dealing with an appeal from an elaborate and well reasoned judgment of a Division Bench of the Delhi High Court. All the principles relevant to constitutional adjudication were present in the minds of the Delhi High Court. In particular, the presumption of constitutionality of statutes and judicial restraint were two such principles which loomed large. But a major constitutional duty also informed its adjudication namely the duty to strike down laws which were plainly unconstitutional.

The Delhi High Court read down the provisions of section 377 on only three grounds namely violation of the right to equality under Article 14, violation of the right against non-discrimination on grounds of sex under Article 15 and violation of the Right to Life under Article 21. On Article 14, the High Court found that section 377 caused an unfair and unreasonable discrimination against homosexuals and hence was violative of Article 14. It also accepted the argument that public animus and disgust towards a particular social group or vulnerable minority was not a valid ground for classification under Article 14. On the other hand, it held that the only morality which could be invoked was constitutional morality, and criminalizing homosexuality would be against such morality. The Supreme Court however does not deal with these aspects. It quickly rejects the equality argument by saying that a classification based on those who indulge in intercourse in the ordinary course and those who indulge in it ‘against the order of nature’ constitutes different classes, and that there is no arbitrariness or irrational classification. One thought that the whole case was about the irrationality of the concept of the ‘order of nature.’

Even more disappointing is the Supreme Court’s treatment of the Article 15 argument. The High Court had, after a careful analysis held that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. The High Court also held that Article 15(2), which incorporates the notion of a horizontal application of rights, namely citizen v citizen in public spaces, would also cover discrimination on the ground of sexual orientation. This creative interpretation is not even touched upon by the Supreme Court. It dismisses the Article 15 argument in the same breath as it dismisses the Article 14 argument.

The Right to Life under Article 21 was viewed by the High Court as including the rights to dignity, autonomy and privacy. The High Court also dwelt thoughtfully on identity and personhood. None of these aspects has been dealt with by the Supreme Court. It cites passages from several judgments on Article 21, but does not ultimately record a reason about why in its view there is no violation of Article 21.

It was no longer a mere case of presumption of constitutionality of a statute. It was a case where a High Court judgment (which also started with such a presumption) was now being overturned, and the consequence was recriminalizing what had ceased to be criminal over four years ago. And that is where the Supreme Court has let us down.

The Court has devoted a disproportionate amount of space to its critique of the High Court relying on foreign judgments, and has implied that these judgments have been applied ‘blindfolded.’ No one who has read the High Court’s judgment can get that impression. Foreign judgments have only been used for throwing light on the issue. Here, one must also worry over the oversensitivity of many judges in our country when foreign precedents are cited. Counsel are often asked “Do courts in that country allow our judgments to be cited?”, and the judges smugly feel that they have done their bit for national honour.

Finally, the Court’s view that there wasn’t sufficient factual foundation to sustain a challenge to the constitutional validity of the law is contradicted by its own recording of the fact that there have been two hundred prosecutions. It is the miniscule minority which needs the court’s protection. It was this very court which said in VG Row that “as regards fundamental rights this court has been assigned the role of sentinel on the quivive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute.” Today, the sentinel says ‘go to Parliament.’

(Raju Ramachandran is a Senior Advocate, Supreme Court)

Image courtesy: here and here.