New APPS

In a disturbing ruling, the usually progressive and interventionist Supreme Court of India has recriminalized gay sex, on non-interventionist grounds. 

Section 377 of the Indian Penal Code holds that whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal commits an unnatural offence. There are two issues here: first, the law itself, and second, the interpretation of the law to include gay sex as being "against the order of nature."

In 2009, the Delhi High Court struck down Section 377, stating:

We declare that Section 377 of the IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution.

We hold that sexual orientation is a ground analogous to sex, and that discrimination on sexual orientation is not permitted under Article 15.

Now the Supreme Court of India has ruled that it is up to Parliament to get rid of section 377. In other words, SCI holds that section 377 does not discriminate, does not infringe basic human rights, and is therefore in the realm of the legislature to allow or disallow. The Bench, consisting of Justices G.S. Singhvi and S.J. Mukhopadaya wrote: 

We hold that Section 377 does not suffer from… unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable. . .

Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 from the statute book or amend it as per the suggestion made by Attorney-General G.E. Vahanvati.

Note that the Government of India, represented by the Attorney-General, defended section 377, despite its support of gay rights. This follows the puzzling presumption that Governments will defend existing law, even if they do not support it. (The same happened here in Canada.) I assume that they are defending against the courts their prerogative to make law.  

Personally, I find it odd that the legal arguments appear to have been about the legality of section 377 itself, and not its application to gay sex. In other words, the Court could (I take it) have ruled that there is nothing wrong with section 377, but that NO sexual act among consenting adults is "against the order of nature." But there is no discussion in the newspapers I read about this option, and I don't know whether it was part of the pleading before the Court.

This is evident in Justice Singhvi's opinion for the Court.

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 Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if, in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family, the person is found guilty. Therefore, the High Court was not right in declaring Section 377 ultra vires Articles 14 and 15 of the Constitution.

(Residents of India: please inform.)