By Ajay Kumar
WITHOUT
PREJUDICE TO THE JUDGEMENT OF THE SUPREME COURT AND WITH ALL DUE RESPECT THAT
THEIR LORDSHIPS DESERVE. THIS ARTICLE IS A MERE CRITIQUE. THE AUTHOR DOES NOT
AIM TO SHOW ANY CONTEMPT TOWARDS THE HON’BLE COURT OR ANY OF ITS JUDGES OR
OFFICERS.
On the 26th of November 1949,
the Constituent Assembly committed what can be best described as an act of
violence for they gave us this constitution and within it was embodied a
flaming sword and this sword was to be wielded by our courts. With this sword
our courts were empowered to pierce through the veil of darkness that
surrounded our nation and let the light of wisdom and liberty shine through it.
But perhaps when the swordsman ceases to
wield his power to protect the document he was sworn to defend, the time comes
for us to attempt to revive him and remind him of his duty, his duty to defend
and more importantly his duty to protect. The Constitution of India was a
solemn declaration of independence, not just from a foreign power, but from
ourselves. With the Fundamental Rights we declared that we were independent in
our minds, we declared independence from prejudice, we declared independence
from bigotry and we most importantly declared independence form the shackles
that bound us to the ways of an older and outdated order. That is why we
created the shield of the fundamental rights and the sword of judicial review.
The job of the guard at the gate of liberty was the shield us from violations
of our rights and then take steps to go out and actively defend them.
Today, the guard laid down his sword and
his shield, today he did not do his job, today he told the grief stricken man
at the gate, that he should plead to his attacker for forgiveness for the guard
would not stand up to defend him. The plea of our guard, the numbers of those
being attacked were too small to warrant his intervention, it would be better
for them to seek forgiveness. But what
is the forgiveness they should seek? Seek forgiveness for who they are? For
being born different from that which we consider normal? Forgiveness for being
born under a flag that refuses to see them as equal citizens? What law is this
that can take away the right of a man to be human, to do as he pleases, to love
whom he pleases and to express that love in any manner he sees fit within the
privacy of his own bedroom?
Was it not this guard who went out and
culled those who prevent a man and a woman from different castes, religious and
social strata from loving each other? Was it not this court that culled those
who attempted to take away the basic dignity of a human being by injecting him
with venom so that he may pronounce the truth? This is the guard who on the
basis of a post card sent to him, a newspaper article that he came across went
out and wielded his power to protect those who were most vulnerable. But today
the guard told the man at the gates of liberty that his hands were tied, the
man was too small, too insignificant to take notice of. Today the guard told
the man that he existed to protect the many and not him. Today the guard told
them man that he was irrelevant. He spat in his face and told him that he was
not worthy of his defence.
The Supreme Court yesterday in Suresh
Kumar Koushal & Anr v. Naz Foundation and Ors, Civil Appeal No. 10972 of
2013 arising from SLP 15436 of 2009 declared that Section 377 of the Indian
Penal Code of 1860 was constitutionally valid and not in conflict with the
fundamental rights enshrined in Part III of the Constitution of India. Section 377 of the Penal Code is a crude
creature for within it there is much ambiguity regarding its purpose, it is
perhaps best a beast that may be used to commit as well as punish all manner of
sin. The Section states:
Unnatural
offences:
Whoever voluntarily has carnal intercourse against the order of nature with any
man, woman or animal, shall be punished with imprisonment for life, or with
imprisonment of either description for term which may extend to ten years, and
shall also be liable to fine.
Explanation: Penetration is sufficient
to constitute the carnal intercourse necessary to the offense described in this
section
The phrase that is used, is ambiguous, for
what constitutes an act against the order of nature? Even their Lordships of
the Supreme Court could not answer that pertinent question. For in Paragraph 38
they proceed to state.
“[..] no uniform test can be culled out to classify
acts as “carnal intercourse against the order of nature”. In our opinion the
acts which fall within the ambit of the section can only be determined with
reference to the act itself and the circumstances in which it was
executed.[..]”
Now perhaps the question may be asked as to
what if a man is naturally inclined to commit such “carnal intercourse”. What
if for this man, this is his way of life, the identity he was born with, the
wiring he cannot change? What do we do with this man? The Section says we lock
him up, we hope the constitution would beg to differ. But perhaps we misread
the constitution when it uses terms like “equality” and “liberty”. Perhaps, we
should have read the section as their Lordships read it in Paragraph 38 where
they state:
“[..]Nonetheless in light of the plain meaning and
legislative history of the section, we hold that Section 377 IPC would apply
irrespective of age and consent. It is relevant to mention here that the
Section 377 IPC does not criminalize a particularpeople or identity or
orientation. It merely identifies certain acts which ifcommitted would
constitute an offence. Such a prohibition regulates sexualconduct regardless of
gender identity and orientation [..]”
Yes, your Lordships, the provision does
indeed regulate sexual conduct regardless of gender identity and sexual
orientation, but only when you fail to recognise that homosexuality is a sexual
orientation and that being a transgender is indeed a gender identity. If the
norm was the only identity this provision would stand valid but it is quite the
opposite, the facts around the world show that it is not merely a heterosexual
norm that survives an identity, but so does the homosexual one, so does the
bisexual one and so does a transgendered identity. People are born with this
identity and our Constitution does not demand that they be asked to change it.
To support their conclusion their Lordships
have looked into various case law and facts on record and have stated that from
the facts on record there are insufficient details to record a finding that
homosexuals are being subjected to discriminatory treatment only on the basis
of their sexual orientation. Perhaps we have finally seen the end of days when
their Lordships took notice of the world around them, seldom does one go by a
day in India where a homosexual has not been subject to violence, physical,
emotional and moral violence. They are told on a daily basis that they are
immoral creatures not worthy of recognition as human beings. This is a matter
of public record, it is there on our streets, in our laws and in the halls of
our Parliament, homosexuals are denied their basic rights every day in this
country for this vicious section may be used to lock them up for being who they
are.
But if a fact is not evidence on affidavit
it does not exist, perhaps the crowds outside in Delhi today do not indeed
exist, for they have not made themselves aware by swearing on oath as to their
existence. Perhaps this is the case, but this is something new, their Lordships
often in the past and perhaps even later yesterday and most probably even today
will take note of facts that are a matter of public record while drawing their
conclusions. But perhaps, those facts need to relate to people, homosexuals are
after all against the order of nature, they are not people per se now are they?
Perhaps that is what their Lordships
were thinking when they said in Paragraph 43:
“[..]While reading down Section 377 IPC, the Division
Bench of the High Court overlooked that a miniscule fraction of the country’s
population constitute lesbians, gays, bisexuals or transgender 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 and this cannot be made
sound basis for declaring that section ultra vires the provisions of Articles
14, 15 and 21 of the Constitution[..]”
Yes,
your Lordships, there is no disagreement with your reasoning when you
say that less than 200 people have been prosecuted in the last 150 years. But
prosecution does not always mean being prosecuted in a court of law,
prosecution means being bullied in school, prosecution means being thrown out
of your homes, prosecution means being constrained to commit suicide because of
the circumstances you are born with, procesuction means to be proceeded against
for the person you were born to be. That is what prosecution means, if that is
taken into account, no person can concluded that there have been only less than
200 instances of prosecution, newspaper reports of a year alone would give us a
number that is far more, and we are not aware of what is not reported or the
abuse that goes on behind closed doors.
Their Lordships go on to say in Paragraph
52:
“In its anxiety to protect the so-called rights of
LGBT persons and to declare that Section 377 IPC violates the right to privacy,
autonomy and dignity, the High Court has extensively relied upon the judgments
of other jurisdictions. Though these judgments shed considerable light on
various aspects of this right and are informative in relation to the plight of
sexual minorities, we feel that they cannot be applied blindfolded for deciding
the constitutionality of the law enacted by the Indian legislature.”
Two points your
Lordships, I will just take a few moments of your time to go through them, much
obliged, the first problem is that this very court in Vishaka’s and in numerous
other cases has relied on those very sources of international jurisprudence to
correct a manner of wrongs in Indian society. In fact, perhaps it is important
to note that our very system of law is of foreign import, the common law of
England as it applies to India as we so proudly call our system of laws and on
the second point, foreign information is often indicative of a broader and
wider global trend. We live in a comity with other nations of the world. We
must keep up with the times, we certainly do when it comes to most matters. It
has been the spirit of our jurisprudence to keep in line with the way the world
is going, nations that are our partners in progress often look to our courts
for guidance on matters they are not familiar with as we often look to them. It
is perhaps this way that together as a planet we march towards progress, if we
stop now and say we don’t want to go with everyone else, we are glad to say in
a forgotten era and a backward century, we dilute the very essence of the
constitution we swore to defend.
The shield of our system of law exists to
protect even one man, in fact it exists, perhaps solely to protect this one man
from the tyranny of the many and the sword is used to defend him. Our
constitution does not exist to protect the majority, if it did why the need for
fundamental rights? Let us go back to the days of parliamentary supremacy? Rex
Non Potest Peccare? But then perhaps no one will ever point out if the emperor
has no clothes, no one will stand up to the King. The constitution has vested
the court with weapons. To stand up to the king when he is doing wrong, and to
defend his subjects who seek to merely live their lives.
Today, our guards at the gate have laid
down their arms. With a single act they have confirmed what we suspected all
along, that a part of our society has no claim to citizenship. Has no right to
live in a manner it pleases and chooses, has no right to privacy and has no
right to be recognised as human. When the arms fall silent, the laws prevail.
Today, the law prevailed, but the law is harsh, the law is in the darkness for
the guard has refused to pierce the veil and let the light in.
When the sun rises tomorrow, it shall not
shine on them, for they have been denied the right to seek the light, to feel
the warmth of liberty their fellow citizens enjoy. All because, they are born
of an order which is “against nature”. They are born different and they don’t
deserve it. They are not considered model Indian citizens, they who serve at
the bar, who serve in our armed forces, who are doctors, farmers, cab drivers,
academics, students, teachers, friends, family don’t deserve to have the light
of Article 21 shine on them.
The verdict of the Surpeme Court is not a
judgement on law, it is a judgment on people, and we told a weak section of our
citizenry that the law would not protect them. They are on their own. On 11
December 2013, we killed our constitution and our systems of jurisprudence. No
longer can we hold our heads high in the face of the world and take pride in
our system of law. For today, the Constitution was silenced and suspended by a
bygone generation who seek to live in an even more bygone era.
Jai Hind and Satyameva Jayate.
Ajay
Kumar is a lawyer practising in the Bombay High Court. Ajay is interested in
the areas of civil litigation and corporate work. Ajay graduated from School of
Law, Christ University, Bangalore. In his free time, he likes to read, write
and collect vinyl records.