When the guards lay down their arms

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 26^th 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from bigotry and we most importantly declared independence form the shackles that bound us to the ways of an older and outdated order.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.