Wednesday, 30 November, 2022
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Section 377 verdict: Can we start calling the CJI the CEO of India?

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After the 377 verdict, the inability of our political leadership to take an effective stand on decriminalising homosexuality will not be forgotten.

The landmark verdict by the Supreme Court in reading down Section 377 of the Indian Penal Code, which criminalises homosexuality, has once again reaffirmed our faith in the much-maligned judicial system of the country.

The judgment also underlines the failure of our political class to show the way forward on contentious issues, and act like leaders.

Narendra Modi is arguably among the strongest Prime Ministers India has seen in a long time. But, when it came to taking a stand on whether Section 377 should be decriminalised, Modi government took the easy way out, leaving the decision to the “wisdom of the court”.

Don’t people elect governments to lead them? If every contentious decision is left to the wisdom of the courts, why don’t we start calling the Chief Justice of India, the ‘Chief Executive of India’?

Also, isn’t it ironic that the request to the court was made by the government of a party that never misses a chance to question the tendency of the courts to interfere in functions of the executive and the legislature?

The failure of our political leadership – all parties are equally culpable – to take an effective stand on this issue will not be forgotten. The response was at best wishy-washy – with the Centre merely telling the court that there “does not appear to be any legal error in the judgement and the Supreme Court may take a final view ‘whether the judgement of the high court is legally correct or not”.

Also read: Pre-modern, pre-Section 377 Queer Ramayana shows sages desiring Rama’s body

It shows that while the tools our politicians use to lure voters and spread their agenda have evolved with time, their politics has remained stuck in a time warp – the offending Section 377 is a legacy of the British era (1861).

On decriminalising gay sex, most political parties were united in their opposition – overt or covert – when the issue came up in the Delhi High Court. Most, possibly, felt that taking a stand against retaining the section in the IPC could hit them electorally. What they didn’t understand was that India of 21st century was different from the Bharat of 19th century.

Under the Congress-led UPA-I regime, the ministry of home affairs (MHA) opposed the plea to decriminalise Section 377, asserting that it had been “generally invoked in cases of allegation of child sexual abuse and for complementing lacunae in the rape laws and not merely homosexuality”.

The MHA in its affidavit filed in the Delhi High Court even gave the specious argument that the law deserves to be retained to satisfy the demands of “public morality, public health and healthy environment”.

That the MHA stand was in conflict with that of the union health ministry, which said the section was coming in the way of anti-AIDS drive and must be read down, made it all the more questionable.

Also read: Section 377 exposes BJP and Congress’ doublespeak on homosexuality

Not surprisingly, the Delhi government, the Delhi Police and even the Delhi State Aids Control Society – Delhi had a Congress government at that time – chose to not even apprise the court of their stand on the issue.

Thankfully, the bench comprising Chief Justice A.P. Shah and Justice S. Muralidhar read down the contentious section in 2009, with Shah later (after his retirement) underlining that the judgment reflected what the Constitution-makers envisaged.

“In case of a moral legislation, when it is being reviewed by a Constitutional court, then the rule of majority rules should not count, because if the issue of morality is to be decided by the majority, as represented by the legislature and Parliament, then the fundamental right has no meaning. It is to be decided on the basis of Constitutional values and not majority rule.”

When the matter reached the Supreme Court, the MHA, acting on the advice of the law ministry, decided against taking a stand, leaving it to the wisdom of the court. More importantly, the Centre said – the view finalised by a group of ministers – that there was “no error” in the Delhi HC order, but wanted the Supreme Court to “take a final view in the matter”.

During the hearing, the UPA government even changed its lawyer arguing the matter in the court – additional solicitor general P.P. Malhotra decided to tell the court that homosexuality between consenting adults was illegal and immoral. He presumably forgot that the government had chosen not to take any stand!

The Supreme Court bench of Justices G.S. Singhvi and S.J. Mukhopadhaya decided that the HC order was not legally sustainable.

The bench, however, left it open for a “competent legislature” to “consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same”.

While various political leaders criticised the judgment then, neither the UPA, which was in power for another five months after the SC order of December 2013, nor the current BJP-led NDA government took a step to remove the clause from the IPC or amend it to decriminalise gay sex.

Also read: Human rights lawyer by day, Delhi’s beloved drag queen by night

During the hearing before the Constitution bench, the Modi government tried buying time but the attempt was rebuffed by the bench. Like its predecessor, the Modi government too decided that the issue was a hot potato and must be left to the wisdom of the court.

That, however, didn’t stop BJP leader and MP Subramanian Swamy from calling gay-sex a threat to “national security” and against Hindutva.

Politicians need to evolve: Our politicians will need to play catch up with Indian society which is open, fair-minded and respects all views.

The Supreme Court has evolved since 2013 when two judges thought Section 377 was not unconstitutional. Five wise men today have decided otherwise.

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  1. You really are a bad journalist aren’t you ? Heavy heavy opinion based articles such a as yours are key to polarising this country into a “republican” and “democratic” affair.

    SC made a decision which took a few years and 2 different governments to get through. India has taken a good step, instead of celebration all you can think of where to point the finger at , why must every story that this publication has is a finger pointing story designed to get a lot of clicks on social media ?

    It’s a day that will go down in the history of a young nation stuck with old laws, isn’t advancement in thought enough for you. Had the govt interfered “what right does the govt have to take a stand on what SC says “ would’ve been the call .

    For god sakes , celebrate something major has happened towards human rights . Stop polarising and think twice before writing an article thinking
    1. Am I doing this for attention and click bait ? Cause if I am doing
    This for that then I am endangering freedom of thought by putting opinions as news
    2. Am I doing this to report on what happened.
    Get a life, learn how to write without opinion first.

  2. I think this issue is not one of a tussle between the government and the Supreme Court. The government, particularly when it is ruled by a coalition comprising very few parties if not by a single party choose more often than not a stand that is generally not in conflict with the sentiments of the people. The government has its own rhyme and reason for doing so and it is understandable too. This issue of the Section of 377 was that of one having a far reaching consequences for the government to take a firm stand on. However, it is not difficult to imagine what the government’s stand would have been if it chose to take it. It would in all probability have been for retaining the said Section notwithstanding its feeling that it went against the fundamental rights of the concerned. It was as such a dilemma for the government like “to be or not to be” Hence they found out a wise and safe way out of leaving the matter to be decided by the Court as per their wisdom and now we have the judgement. There are two important points in this issue if not more. One is that of morality for a safe, sound and healthy society to continue and another is of fundamental rights of the concerned individuals as enshrined in our Constitution. The Courts, particularly the Apex would always by the Statute and decide the issue and the present judgement is absolutely in keeping with the said principle. The other point, in my view over-weighs the Constitutional provision, that is morality, and healthy human species and healthy society. The Constitution, however noble that we may say or think is after all man made and is subject to changes if the situation so warrants and changes have taken place therein by umpteen Amendments over the time. It is not unconstitutional to amend it if it is so warranted. Vis-a-vis this the another point is that of healthy human species, society and morality particularly of Indian people. This morality arsing from doctrines command us to follow the rules of the Nature as a civilised society since ages. India has a special status in this regard compared to the other countries of the world for civility, morality and honouring, respecting and thus nurturing the Nature. It is in this context of Indian values that there is a justification for retention and continuation of the said Section 377 prohibiting homosexuality, gay-marriages etc. We are too much influenced by other countries of the world where this type of life pattern is allowed and being practised. This has influenced our society demanding repeal of the said Section. Indian society should, instead have been insulated from other countries at least in this particular respect. Damage and consequences that may follow in the wake this judgement would be irreversible and therefore it s wise to stitch quite in time to prevent the same.

  3. Such articles may widen the chasm between the executive and the judiciary. In our kind of democracy, the ruling party cannot go against the ‘khap’ sentiments without sacrificing a part of its vote bank. Let the SC take such decisive steps in such cases. There is no harm in their complementing each other.

  4. Please do not paint this issue as a battleground between political leadership versus judiciary. Politician is reflective of general popular will which in India is conservative. Judiciary is not perimeter-ed by popularity and is based on justice and fairness. Both are two important pillars of democracy and supplement each others by the ‘separation of power’.

  5. Many people decry judicial activism; Shri Shekhar Gupta cannot forgive Their Lordships for intruding into the domain of his beloved world of cricket. But consider how much of the heavy lifting we all expect the judiciary, especially the apex court, to do on our behalf. The executive, often so oppressive and overbearing, can turn surprisingly diffident and reluctant to decide on important issues. Time and again, the apex court has shown us why we are right to trust it as India’s foremost public institution.

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