I, like many others, was not paying much attention to the impending Supreme Court verdict in the appeal of the Delhi High Court’s verdict quashing the criminalization of gay sex in Section 377. The Delhi HC’s arguments seemed so common-sensical, and international opinion so strong, that it seemed inconceivable that the Supreme Court would not uphold the verdict. The inconceivable occurred yesterday.
A bench of two judges declared the following in reinstating the ban on gay sex:
- In its “anxiety” to protect the “so-called rights” of LGBT people, the HC “extensively relied upon the judgments of other jurisdictions”.
- “The High Court is not at all right in observing that Section 377 IPC obstructs personality development of homosexuals or affects their self-esteem because that observation is solely based on the reports prepared by the academicians.”
- And most shocking: The HC “overlooked 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.”
Since when did it become OK to discriminate against a group because their numbers are small? Why is a discriminatory law OK if prosecutions under that law are rare? Why “so-called rights” — do LGBT people not have rights? Don’t all courts, all over the world, rely upon judgments in other jurisdictions? And should academicians stop giving advice to courts now?
They conclude that it is the legislature’s job to change the law, if required. This is the same court that just ruled against red beacons on cars for all but a small category of officials (which includes Supreme Court judges!), last year banned sun-film on car windows (nowhere outlawed in the motor vehicle act, which only prescribes the minimum transparency of the windows), mandated CNG fuel in Delhi public transport, banned street food in Delhi… It is not the court’s job to legislate on those things. It is, however, the court’s job to strike down discriminatory legislation.
This judgment will not be looked on kindly by history, nor will its authors Justices Singhvi and Mukhopadhyaya.