What to do when the Supreme Court issues a contemptible judgement?

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.

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4 Comments

  1. Well articulated. This judgement is so off-the-wall, it was completely unexpected.

    Reply
  2. I too noticed the bizarre comment about “so-called rights” in the judgement, and commented about it on my blog tantu-jaal (http://sunilmukhi.blogspot.in). Is it even permissible for Indian judges to refer to any Indian’s rights as “so-called”, given that India is a signatory to the Universal Human Rights Declaration of the UN and given what our constitution says? I’m hopeful that the hostility shown in this judgement (“so-called”, “miniscule fraction” etc) will make it easier for a curative petition to succeed.

    Reply
    • Rahul Siddharthan

       /  December 16, 2013

      Sunil — sorry for delayed reply, and thanks for your blogpost too. It is a horrifying judgement in every way and a blot on the court. The CJI should be worried and should be thinking what to do. There are claims that the SC is really saying 377 is not talking about gay sex, but that won’t wash: if that was their statement, they could have been much more clear, and/or demanded clarity in the law itself about what constitutes an act “against the order of nature”.

      Reply
  3. Though I am not much wont to indulging in conspiracy theories, I cannot help seeing all sorts of extra-legal reasons behind this mess of a verdict. Some of these are:

    (a) Internal SC politics: This would almost certainly not have happened if the last CJI, Altamas Kabir was on the bench. Relations between Kabir and some of the current judges are rather frigid to judge from public utterances.

    (b) This was supposed to be the last judgement before retirement for one of the judges, and it is not inconceivable that the judge was superstitious enough to think of it as his religious duty to not let a “inauspicious” judgement pass under his watch. Alas, that would not just be highly unethical, but in all probability quite different from the core values of the judge’s religion too.

    * Complete with the smug howlers pointed out above. Who do they think, apart from researchers, is going to figure out the influence of bias on personality development? A bunch of guys in wigs who can write phrases like “so-called rights” in a judgement about the constitution?

    Reply

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