Vinod Mubayi


In the last couple of decades the higher courts in India have played a positive role in taking decisions affecting the lives of millions when the executive or legislative branches had failed to act. The Supreme Court, in particular, through its activist role in public interest litigation, such as for example the judgment on reducing air pollution in Delhi, has often succeeded in passing laws that have helped to improve people’s lives.  But every once in a while, the courts slip up and issue rulings that verge on absurdity.


The prime example of this was the Allahabad High Court judgment on the Babri Masjid case. To say that the reasoning behind the arguments presented by some of the judges in that case, which quoted copiously from mythological writings as if they were matters of fact, was irrational and lacked substance would be an understatement. The same problem affects the recent judgment on Section 377 of the Indian Penal Code, which criminalizes homosexual acts, by a two-judge panel of the Supreme Court.  In a shocking judgment rendered by Justices Singhvi and Mukhopadhyaya on December 11, 2013, Section 377 was reinstated. A few years ago, the Delhi High Court declared this unwholesome and unwanted relic of the colonial era as unconstitutional, since it obviously violated the fundamental rights of a section of the population under Articles 14 and 21 of the constitution. The very language of this statute “carnal intercourse against the order of nature” reeks of scientific illiteracy and gross prejudice that has no relevance to modern notions of sexual behavior.


The fact that the petition to overturn the ruling of the Delhi High Court was brought by conservative religious groups, Hindu, Muslim, and Christian, shows that the two judges who restored Section 377 to the IPC fully share the backward patriarchal ideology of the petitioners.  Not only that, their reasoning that that those who indulge in carnal intercourse in the order of nature and against the order of nature constitute different classes is not only illogical and irrational but also illiterate and ignorant.  Obviously, these learned judges have never heard of bisexuality; but going beyond, that their reasoning could be used to disallow all kinds of things, no matter how perverse or absurd. As one legal scholar writing in the Hindu newspaper said “by the Court’s logic, because men and women constitute different classes it is permissible to say that only men will be allowed to be enrolled as advocates who can practice before the Supreme Court, and not women. Such logic is as much absurd as it is incredible, coming from the Supreme Court of India — though not entirely surprising for those who closely follow the Court’s judgments.”


The sooner a full bench of the Court reverses this decision the better for the country. Leaving it to the legislature to amend the IPC, as the two-judge panel recommended, would leave the fundamental rights of a minority at the mercy of majoritarian prejudices and biased attitudes, something that the constitution is expressly designed to prevent.

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