The Supreme Court should overturn its 2013 ruling criminalising gay sex in India.
After privacy ruling, the path is clear
On August 24, 2017, a nine-judge bench of the Supreme Court protected the right to privacy as an intrinsic part of right to life and personal liberty under Article 21 of the Constitution. The SC observed “one’s sexual orientation is undoubtedly an attribute of privacy”. The word “undoubtedly” is loud and clear. This has a direct bearing on the sanctity/ legality of Section 377 of the Indian Penal Code (IPC) that criminalises carnal (sexual) intercourse “against the order of nature” with any man/ woman. The freedom of privacy and that of sexual orientation now stand guaranteed by Part III of the Constitution. Thus, Section 377 IPC cannot now survive in its present form. The constitutional issue has been settled already.
Earlier, on July, 2, 2009, the Delhi high court had decriminalised Section 377 IPC. The Delhi HC had declared Section 377 IPC unconstitutional in so far as it criminalises consensual sexual acts of adults in private. This view of the HC did not find favour with the SC.
On December 11, 2013, a two-judge bench of the SC upturned the HC verdict with the observation/ reasoning that only a miniscule fraction of country’s population constitutes lesbians, gays, bisexuals and trans-genders.
The SC bench held that there can’t be any basis for declaring Section 377 IPC ultra-vires of provisions of the Constitution.
It is evident that after the August 24, 2017 nine-judge bench judgment of the SC, the two-judge bench judgment of the SC that fastened criminality under Section 377 IPC can’t be sustained.
The matter has just been revived and a three-judge bench of the SC has referred the issue to a five-judge bench. In my view, every bench of the SC (other than an 11-judge bench) is bound by the interpretation of the Constitution given by a nine-judge bench. The five-judge bench is now expected to complete the formality of pronouncing the constitutional issue of criminality in compliance with the nine-judge bench.
The need to refer the matter to a five-judge bench of the SC arises out of Article 145 (3) of the Constitution which stipulates that the minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of the Constitution shall be five.
In my opinion the Aadhaar verdict, pending before a five-judge bench, although in a different context (with facets pertaining to privacy), will also have to comply with the nine-judge bench verdict of the SC.
In the teeth of an interpretation given by a nine-judge bench of the SC on any constitutional issue, no litigation should be permitted to be procrastinated on the same issue. The question may also arise: If the Constitution has already been interpreted on a substantial question of law by a nine-judge bench, is it really necessary to refer the same constitutional issue again to a five-judge bench? The words used in Article 145 (3) are: “The minimum number of judges….. shall be five”. So, a nine-judge bench verdict of the SC is already in compliance with Article 145 (3).
While interpreting the Constitution, can a five-judge bench of the SC take a different view on an issue already decided by a nine-judge bench of SC? If so, will there be another round of litigation of review petition, followed by a curative petition against the five-judge bench? These questions continue to haunt me.
The judicial time of the SC is very precious. And the moment a nine-judge bench decides a constitutional issue, both Article 144 (all authorities, civil and judicial in the territory of India shall act in aid of the Supreme Court), and Article 141 come into play (the law declared by the Supreme Court shall be binding on all courts within the territory of India).
The words “shall act”, and “shall be binding” fasten constitutional obligations on the executive and the judiciary respectively. The five-judge bench of the SC may perhaps rule: the word “courts” in the Article 141 includes the SC and thus in view of Articles 141 and 144,the constitutionalism of criminalisation of Section 377 of IPC has already been decided by a nine-judge bench.
The writer is former additional solicitor-general of India and senior advocate, Supreme Court
It’s immoral, and also a health hazard
Ashwini Kumar Upadhyay
I support criminalisation of unnatural sex and homosexuality because I believe that it is not only an abnormal and aberrant act but also unethical and immoral, particularity in the context of our country. Homosexuality is completely against the culture of our nation. It is a social evil and therefore the government has the power to contain it. I feel homosexuality leads to diseases like AIDS and HIV and also various mental disorders.
Homosexuality would lead to a big health hazard and degrade moral values of society. Homosexual relationships have no biological purpose because they cannot result in the birth of children. If everyone were homosexual, the human race would perish. It is dangerous and positively linked with a number of social pathologies. It is deviant, perverted, disgusting and just plain wrong.
It is sad to note that the culture of homosexuality, which is a form of sexual perversity, has enveloped our country and has become a canker eating into the very fabric of the society, leaving in its trail tales of woes as it has negatively impacted the lives of not only those involved in the act but has brought about a negative image for Indian culture, which is supposed to be the harbinger of hope for the world.
Interestingly, India is enmeshed in a series of contradicting controversies, which has dented the image and as such, losing grip over the essential responsibility. Consequently, issue of homosexuality has become a cancer that is eating into the lives of many families with the recognition given to these people by various non-government organisations.
As one of the basic human rights, the right to privacy is not treated as absolute and is subject to such action as may be lawfully taken for the prevention of crime, disorder, protection of health, morals, protection of rights and freedom of others. There are two possible theories for protecting privacy of home. The first: activities at home harm others only to the extent that they cause offence resulting from the mere thought that individuals might be engaging in such activities and that such “harm” is not constitutionally protective by the state. The second: individuals need a place of sanctuary where they can be free from societal control. The importance of such a sanctuary is that individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves, an image that may reflect the values of their peers rather than the realities of their nature. The right to privacy in any event will necessarily have to go through a process of case-by-case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right to privacy as an emanation from them which one can characterise as a fundamental right, we do not think that the right is absolute.
Right to life guaranteed under Article 21 of the Indian Constitution includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.
Of course, the magnitude and content of the components of this right would depend upon the extent of the economic development of the country but it must in any view of the matter include the right to the basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self. However, every act, which offends against or impairs human dignity, would constitute deprivation of this right to life and it would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights. Hence, any form of inhuman or degrading treatment would be offensive to human dignity and constitute an inroad into this right to live and it would, on this view, Section 377 of IPC is balanced and must not be reviewed or repealed.
The writer is a BJP leader and a SC lawyer