The Supreme Courts’ decision to set aside the 2009 Delhi High Court ruling — which struck down a provision of the IPC’s Section 377 criminalising "unnatural sex" among consenting adults — is a "huge abdication of the constitutional responsibility" of the judiciary, says Arvind Narrain, a lawyer with the Bangalore-based Alternative Law Forum.
A member of the legal team that has been fighting the petition in courts for over a decade, Mr. Narrain told The Hindu in an interview that while it’s a moment of disappointment and anger, it’s also one of hope; for, while the SC has been able to reverse the 2009 judgement legally, it will not be able to reverse the social change the community has seen.
You’ve said this ruling falters on the question of constitutionality. Why is this so?
The ruling is most shocking as it has misunderstood the philosophy of the Constitution, which is that when all else fails, the judiciary steps in to protect those interests that majority opinion fails to protect. The basic point that has been made in the order is that given the LGBT community is a miniscule minority and less than 200 cases have been booked to date under Section 377, there is not enough grounds to challenge the validity of the law. That reading is extremely troubling.
I must point out here that we are not a majoritarian democracy, we are a constitutional one.
The Supreme Court appears to have put the ball in Parliament’s court. Do you think there is the political will, given powerful religious groups are lobbying against it, to enact a legislation to decriminalise?
It is fundamentally wrong for the courts to put the ball in Parliament’s court. They are saying let the majority decide. See what happened with the Delhi HC judgement, where the courts were able to play an educative role and political opinion was influenced positively. This was evident in the government submission in this case.
The government, after a few flip flops on this, submitted in favour of striking down Section 377. Does this make you optimistic about taking the legislative route?
Yes, the government got it right with their submission. In his oral submission in this case, the Attorney General G. E. Vahanvati termed the law as sexual imperialism, and in the written submission it supported the Delhi HC order to decriminalise. This was indeed an impact of the progressive nature of the 2009 ruling.
Whether this will happen through a legislation or not is something we will consider, and it’s a place for us to get to...But, as of now we are looking at exploring the legal options before us including curative or review petitions. We’ve to sit down and figure out where to go from here.
But the thing to remember hereis that a lot has happened since the 2009 judgement. People have started coming out, there’s been wide support… So, while the Supreme Court has been able to reverse the judgement legally, socially it cannot. Which is why, while it is a moment of disappointment with the courts and anger, it’s also a moment of hope.