On reading the 98-page judgment of the Supreme Court of India, which yesterday upheld as entirely constitutional a colonial-era statute that criminalizes homosexuality, my first temptation was to say—no, to bellow—that the law is an “ass.” But I fought the temptation for fear of being taken, by the judges of that once-august body, to refer to a part of the human anatomy that is the epicenter, the very core, of the Indian offence of “carnal intercourse against the order of nature.”
Yes, the Supreme Court of India has an ass-fixation. In a ruling so medieval as to call into question the fitness of its judges to preside over the tussles of a 21st-century society, the court overturned a four-year-old decision of the High Court in New Delhi, which had ruled that the criminalization of “unnatural offences” under Section 377 of the Indian Penal Code—enacted as law by the very Victorian British in 1861—was in violation of the 1950 Constitution of independent India. The High Court’s reasons in 2009 were much the same as the reasons why similar laws have been found to be unconstitutional in the United States: the criminalization of consensual homosexual acts is in breach of the right to life and liberty, enlarged in scope to protect dignity, autonomy, and privacy; the right to equality before the law; and the right to protection from discrimination.
The case arose as a result of a form of class action brought by a gay rights group in 2002. When the High Court finally ruled on the matter seven years later, it did so without resistance from the Indian Government, whose law officers chose not to oppose the petitioners. “As it stands,” the High Court said, “Section 377…denies a gay person a right to full personhood which is implicit in [the] notion of life under…the Constitution.” The ruling was celebrated by India’s gays, who lived lives of apprehension, opprobrium, and fear of police persecution. Writing at the time, a gay Indian citizen to whom I’m related lauded the court for rising above the fray of the culture wars, and for giving him the gift of public dignity, even as India remained a socially constricted country. “Is this heaven?” he asked, in a poignant column. “Far from it. But India, surely, has taken a giant step away from hell.”
Fundamentalist Hindu, Muslim, and Christian organizations that would normally have been at each others’ throats were galvanized by this ruling to unite and appeal, propelling the matter to the Supreme Court, which yesterday broke the hearts (and hardened the resolve) of tens of thousands of gay people across India. One Indian man (with more than a passing familiarity with the law in more enlightened lands) Tweeted: “We expected Lawrence v. Texas, we got Bowers v. Hardwick.”
The Supreme Court of India had, in effect, comported itself like a “Khap Panchayat,” a species of unelected village council found in certain parts of benighted northern, rural India that dispenses summary judgment on matters of morality, ruling particularly harshly in matters of sexual autonomy. The judgment was delivered by Justice G.S. Singhvi, the court’s senior-most judge, who, by merciful coincidence, reached the age of retirement on the day of the ruling. The judgment is a breathtaking hodgepodge of prurience and flawed philosophizing, of a piece with the alarming mediocrity that marks the jurisprudence of the highest courts in the world’s largest democracy.
With a certain encyclopedic glee, the judge toured the historical landscape of laws criminalizing homosexuality, treating us to some time-travel back to Henry VIII’s Buggery Act of 1533 (‘an Acte for the punysshement of the vice of Buggerie’). No class of “unnatural offence” went unexamined, as Justice Singhvi pored over definitions of “intercourse,” “carnal,” “unnatural” and “penetration.” We learned from his references to Khandu v. The Emperor (1933), that a man’s insertion of his penis into the nostril of a bullock was “unnatural.” We were treated to a disquisition of whether the insertion of a penis in between thighs pressed tightly together amounts to “penetration,” as well as to observations of this sort, from page 71, which I reproduce in all its lurid awfulness (I have resisted the urge to edit his English): “It is true that the theory that the sexual intercourse is only meant for the purpose of conception is an out-dated theory. But, at the same time it could be said without any hesitation of contradiction that the orifice of mouth is not, according to nature, meant for sexual or carnal intercourse. Viewing from that aspect, it could be said that this act of putting a male-organ in the mouth of a victim for the purposes of satisfying sexual appetite would be an act of carnal intercourse against the order of nature.”
There are other passages of this sort, many others, but the most jarring aspect of the judgment is its incoherence. Justice Singhvi described the writ petition filed by the Naz Foundation [the gay rights advocacy group that triggered the case] to be “singularly laconic,” and criticized the petition as having “miserably failed to furnish particulars of incidents of discriminatory attitude exhibited by the state agencies toward sexual minorities…” In other words, in the absence of a detailed catalog of wrongs committed against individual gays by the police and other state bodies, he could not rule on the demonstrable discriminatory effect of Section 377. But wasn’t the court being asked to rule on the discriminatory nature of Section 377, which need only be demonstrated by reference to constitutional principle, and not to actuarial lists of bookings and prosecutions?
Most unsettling of all was the reasoning employed to conclude that Section 377 did not violate Articles 14 and 15 of the Indian Constitution, which guarantee the right to equality before the law and protection against discrimination. Supporting the right of lawmakers to classify people into normative categories (in pursuit of lawful objectives), the judge cited a previous Supreme Court ruling that held that legal classification (the making of a distinction between those who are, and who aren’t, members of a “class”) yields results that are inherently unequal, but not inherently unconstitutional. And yet, from here, the judge made a startling intellectual leap (straight back into the Dark Ages): “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.”
Huh? In plain English, the judge is saying: Heterosexuals and homosexuals constitute two different classes, validly distinguished, and so the latter cannot argue that the criminalization of homosexuality is arbitrary or irrational. (Why…? Because I say so.)
Read on: “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.”
Huh? In plain English, again, the judge is saying: Section 377 does no more than define an offence and prescribe punishment, which is awarded if guilt is established in a trial that follows due procedure. This satisfies the rule of law. The High Court was, therefore, wrong in declaring the criminalization of homosexuality unconstitutional. (Why…? Because I say so.)
Judge Singhvi compounds this dangerous inanity by then stating—again, in English so execrable that you wonder how it passes muster at an apex court that conducts its business in English—the following: “While reading down Section 377…, the…High Court overlooked that a miniscule [sic] fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 and this cannot be made sound basis for declaring that section ultra vires…of the Constitution.”
In a more idiomatic nutshell: Since only an average of one-and-a-bit persons have been prosecuted for homosexuality over the last 150-and-a-bit years, the law criminalizing homosexuality is just fine, thank you. (Why…? Because the Supreme Court of India says so.)
And in saying so, the Court threw the matter back into Parliament’s lap: It is for the lawmakers, the judgment said, and not for the courts, to end the criminalization of homosexuality. Why…? Because the Supreme Court of India didn’t have the balls to do so itself, preferring to commit a memorably unnatural offence against common sense and justice.