CONSTITUTIONALITY
OF SECTION 377,
INDIAN
PENAL CODE – A CASE OF MISPLACED HOPE IN COURTS
M.P. Singh[1]
Amidst
strong reactions against the decision of the Supreme Court in Suresh Kumar
Koushal v. Naz Foundation, this paper argues that the Court has done all that
it is expected to do under the Constitution and the law established under it.
The respondents, especially the Union of India, have unsuccessfully asked it to
do what the Constitution does not expect it to do. The remedy against § 377
lies with the people through their Parliament, and not in the courts.
“I often wonder whether we do not rest our hopes too
much upon constitutions, upon laws, and upon courts. These are false hopes;
believe me, these are false hopes. Liberty lies in the hearts of men and women;
when it dies there, no constitution, no law, no court can save it; no
constitution, no law, no court can even do much to help it. While it lies
there, it needs no constitution, no law, no court to save it.”
—Judge
Learned Hand, The Spirit of Liberty[2]
I.
INTRODUCTION
Before
contextualising the foregoing statement, in view of sharp
reactions to my comment on the decision of the Delhi High
Court,[3]
let me clarify that I am neither insensitive to the issues of LGBTs or LGBTQs,
nor am I opposed to their claim for rights and liberty in their private and
personal lives. As a student of constitutional law, my limited concern is to
examine whether the courts have the power to invalidate § 377 of the Indian
Penal Code (‘IPC’). In my understanding of the Constitution and its
interpretation, the courts lack the power to invalidate the section.[4]
I am not surprised that on appeal in Suresh
Kumar Koushal v. Naz Foundation (‘Koushal’)[5],
the Apex Court has also come to the same conclusion.
Sharp
reactions against Koushal in the mass media and a few aca-
demic writings reminded me of the above mentioned words of
Judge Learned Hand which he spoke to a gathering of United States citizens at
the Central Park of New York towards the end of World War II. A few days after
Koushal, I chanced to watch a meeting
of a group of LGBTs at Delhi University campus during which, following
expressions of disappointment and anger against the decision by several
speakers, the convener of the group said something similar to what Judge
Learned Hand had said. He asked his co-workers and the audience not to rely too
much on the courts. The rights of LGBTs could not be realised through court
decisions, he said; they required an attitudinal change in the society at
large, which was possible only by informing and enlightening people about the
legitimacy of their claims. In Koushal,
the Supreme Court also seems to be expressing a similar view when in response
to some allegations of discrimination by the first respondent – Naz Foundation
– it says: “These details are wholly insufficient for recording a finding that
homosexuals, gays, etc. are being subjected to discriminatory treatment either
by the state or its agencies”.[6]
II.
ANALYSIS OF THE ROLE OF THE
GOVERNMENT
AND THE COURT IN THE PRESENT CASE
While
the outrage in the media and amongst legal scholars is un-
derstandable, the claims of the Attorney General induced by
the Government of the day, first to only assist the Court in the hearing of the
appeal and later for the review of the decision, are unprecedented and
unprincipled. The government is expected to honour and defend the Constitution
as much, if not more, as the Court and to insert and retain in the statute book
only such laws which it considers constitutional, and to ask the Attorney
General to defend them against any challenge before the courts. In Koushal, on
the contrary, the government admits its law to be unconstitutional, and instead
of removing it from the statute book, asks the Attorney General to get it
struck down by the Court. How strange is it that a government which often
blames the courts of overreach and excessive interference with laws and
policies, unprecedentedly asks the Court to invalidate a legislation, which the
Constitution allows to “continue in force…until altered or repealed or amended
by a competent legislature or other competent authority”?[7]
A CASE
OF MISPLACED HOPE IN COURTS 571
At one
point of time, the Attorney General asked the Court to hold
that not only liberties but even life of any person could be
taken by the petty police officers without any procedure established by law.[8]
It is incomprehensible that the Attorney General now expects the Court to
invalidate a law which has remained unaltered in the statute book for over one
hundred and fifty years, including sixty four years since the commencement of
the Constitution. Except in a federal arrangement where the Centre and the
States can challenge each other’s laws on the ground of encroachment in the
jurisdiction of one by the other, only an individual or a group of individuals
who perceives an unconstitutional encroachment on their rights or interests by
such laws are entitled to get them invalidated by the courts.[9]
Even in this limited field, Justice Holmes advised that the nation could not
come to an end if the courts lost the power to declare federal legislation
unconstitutional but it could be imperilled if the courts could not make that
declaration as to the laws of several states.[10]
The Attorney-General’s approach in the present matter implies the government’s
lack of both confidence in itself and faith in democracy – the cornerstone of
the Constitution and one of its basic features – and expects the courts to do
what the Constitution assigns to the people’s elected representatives. It
amounts to subversion of the Constitution and beginning of the end of our
liberty.
As
custodian of the Constitution, the Court in Koushal, on the
other hand, has performed its job of protecting and
preserving the Constitution from this kind of unexpected and unacceptable
design of the government in refusing to invalidate or even read down § 377 of
the IPC. Admitting its plenary power of judicial review, it clarified that
“keeping in mind the importance of separation of powers and out of sense of
deference to the value of democracy
that parliamentary Acts embody,
self-restraint has been exercised by the judiciary when dealing with the
constitutionality of laws”.[11]
Alluding to the presumption of constitutionality and the doctrine of
severability, the Court admitted that “[d]eclaring the law unconstitutional is
one of the last resorts taken by the courts”[12]
and they “would preferably put into service the principle of ‘reading down’ or
‘reading into’ the provision to make it effective, workable and ensure the
attainment of the object of the Act”.[13]
Applying these principles to § 377 of the IPC, which has survived as such ever
since the making of IPC even though it has been amended about thirty times and
the Law Commission recommended its deletion, the Court concluded:
“It is, therefore, apposite to say that unless a
clear constitutional violation is proved, this Court is not empowered to strike
down a law merely by virtue of its falling into disuse or the perception of the
society having changed as regards the legitimacy of its purpose and its needs”.[14]
On
examining the prosecutions and convictions under § 377 of
the IPC in the light of these principles, the Court found that
all these cases related to “non-consensual and markedly coercive situations and
keenness of the Court in bringing justice to the victims who were either women
or children cannot be discounted while analysing the manner in which the
section has been interpreted” and expressed its doubt “whether the court would
rule similarly in a case of proved consensual intercourse between adults”.[15]
However, going by the plain meaning and legislative history of the section, it
held “that § 377 of the IPC would apply irrespective of age and consent”.[16]
The Court further clarified that:
“Section 377 IPC does not criminalise a particular
people or identity or orientation. It merely identifies certain acts which if
committed would constitute an offence. Such a prohibition regulates sexual
conduct regardless of gender identity and orientation”.16
The Court also
found that the petitioners before the Delhi High Court did not produce adequate
proof of the fact that “homosexuals, gays, etc. are being subjected to
discriminatory treatment either by the State or its agencies or the society”.[17]
In my view, even if discrimination by society is established, invalidity of §
377 will not help LGBTs because the section empowers the state or its agencies
to take action and not the society.
On the
question of discrimination, relying upon the established
law, the Court came to the conclusion:
“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 latter
category cannot claim that § 377 suffers
A CASE
OF MISPLACED HOPE IN COURTS 573
from the vice of arbitrariness and irrational
classification.… Therefore, the High Court was not right in declaring § 377
IPC ultra vires Articles 14 and 15 of the Constitution”.[18]
The
miniscule population of LGBTs and the fact that there were
less than 200 prosecutions, also weighed in the mind of the
Court in rejecting the plea of invalidity under Articles 14, 15 and 21.[19]
I need not repeat what I had said in reaction to the Delhi High Court decision
in arriving at the same conclusion.[20]
Contrary to my understanding of the judicial decisions and their application,
the Court read substantive due process in the combined reading of Articles 14,
19 and 21. But without arriving on any conclusion on that issue, even on the
allegations of torture, harassment and blackmail of LGBTs on account of § 377,
it held that “this treatment is neither mandated by the section nor condoned by
it and the mere fact that the section is misused by police authorities and
others is not a reflection on the vires of the section”.[21]
Mere possibility of abuse of law, the Court observed, does not per se invalidate a law.
Professor
Baxi has strongly argued against the understanding and
application of Article 14 by the Court to different kinds of
sexual acts,[22]
but as I have said before, until a bench of nine judges changes the existing
law on Article 14, the smaller benches are bound by the decision.[23]
Finally,
on the question of foreign precedents and laws, the Court
expressed “grave doubts about the expediency of
transplanting Western experience in our country”.24 Citing the
example of the death penalty and the Law Commission’s views on it and some
cases in which the Court has cautioned against being blinded by foreign
precedents, the Court concluded that Ҥ 377 IPC does not suffer from the vice
of unconstitutionality”.[24]
It further stated that “the competent legislature was, however, free to
consider the desirability and propriety of deleting § 377 IPC from the statute
book or amend the same as per the suggestion made by the Attorney General”.26
I add that, on the lines of Justice Holms’ advice cited above, the Court shows
due deference to major pre-Constitution codes and Acts of Parliament. Even §
303 IPC was invalidated because it encroached upon the judicial power. All
other challenges have uniformly been rejected. In the United States of America,
same sex relationships in State laws have been the subject matter of litigation[25]
and in most other jurisdictions in the West, change has been brought by
legislation.
III.
CONCLUSION
To
conclude, in Koushal, the Court has
lived by its dharma of
upholding the Constitution and the laws consistent with it
even in the face of government’s collusion with the respondents. The stand of
the government has, however, gone against its dharma of defending its laws or to repeal them if it considers them
to be unconstitutional. The media and scholars must enlighten the people,
including the legislators, about the plight of LGBTs and the injustice, if any,
to which law subjects them instead of pinning all the hopes in the courts.[26]
