‘The SC can only reverse 2009 judgment legally, not socially’

Arvind Narrain

Arvind Narrain  

The Supreme Courts’ decision to set aside the 2009 Delhi High Court ruling deleting Section 377 is a “huge abdication of the constitutional responsibility of the Supreme Court”, says Arvind Narrain, a lawyer with the Bangalore-based Alternative Law Forum and part of the legal team that has been fighting the petition in courts for over a decade.

In an interview with The Hindu, he says 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, but socially it cannot 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 the interests of the minorities. 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 troubling. We are not a majoritarian democracy, we are a constitutional one.

The Supreme Court appears to have put the ball in the 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 the Parliament’s court. They are saying let the majority decide. See, with the Delhi HC judgement, the courts have played an educative role and political influence was influenced positively.

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?

The government got it right with their submission. In his oral submission, the Attorney General G. E. Vahanvati termed the law as sexual imperialism and the government supported the Delhi HC ruling. This was indeed an impact of the progressive nature of the 2009 ruling. But, we are currently looking at exploring the legal options before us .

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