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The Indian Supreme Court, Section 377 and the Assault on Fundamental Rights

Manu Bhagavan

Updated: December 12, 2013, 9:44 PM IST
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The 11 December Indian Supreme Court 377 IPC judgment is rife with outlandish claims and pseudoscientific posturing, including in paragraph 43 that LGBTQ people only comprise a "minuscule fraction" of India's population, and, worse, that they therefore don't warrant equal constitutional protections. This is an entirely mystifying way to put things, especially when Article 14 explicitly states that "the State shall not deny to any person equality before the law." (emphasis added)

This is but one example of what is an opinion with little actual logic or legal reasoning. I'll leave it to my friends in the legal community to parse the finer details, but there is one main issue I want to address here.

The Court claims in paragraph 52 (incidentally where Justices Singhvi and Mukhopadhaya use contradictory language acknowledging that "sexual minorities" have rights, while also deviously suggesting that these rights are only "so-called") that judgments from outside of India cannot be applied "blindfolded" for deciding the constitutionality of the matter. The Court then relies on reasoning from a 1973 case on capital punishment and a 1952 decision on marriage processes to underscore their point. In both cases, though, one of the key matters in the quoted material is that courts must be attentive to the uniqueness and specificities of each case. Ironically, in the ruling on 377, the Justices elide all differences between the cases of 1973 and 1952, and blindly accept that no outside study or ruling, or international consensus, can play a role in informing their judgment. (I'll leave aside the fact that the Justices use this as an excuse to dismiss international research and writing in medical and social sciences that reveals most of the arguments favoring Section 377 found in the opinion to be without merit.)

Paragraph 52 was a rebuttal specifically to the Naz Foundation's argument, rendered in the opinion in paragraph 19.11, that international law supports their case to invalidate Section 377. Naz (correctly) points out that the Universal Declaration of Human Rights and the International Covenants on Civil and Political Rights and Economic, Social, and Cultural Rights have all been ratified by India, and further have been domesticated by various cases. The Court never explains why these cases are not relevant. The point here is that international laws have been incorporated into the Indian system, and as such have power from within, as well as from without. Paragraph 52 (and a follow up in 53) never addresses this issue. Domesticated international law also renders the notion of a moot point.

The Naz Foundation's claims in 19.11 are historically grounded. India played a leading role in the creation of the UDHR, the ICCPR, and the ICESCR, as I have demonstrated elsewhere. Hansa Mehta, who served on both the UN Human Rights Commission and the Fundamental Rights Subcommittee transparently stated that the Indian Constitution and UDHR overlapped. Pointedly, she highlighted Article 51 of the Directive Principles, which holds that the State must "foster respect for international law," and clarified that "it shall be the duty of the State to apply these principles in making laws." (See The Peacemakers, p. 129).

This synchronization of domestic and international legal human rights was part of Mehta's overall vision, and that of Gandhi and Nehru, who oversaw various parts of the process from behind the scenes. In an implementation working group in the Human Rights Commission, Mehta observed that "it was clear that the provisions of the [human rights] Conventions would have to become part of the national law of signatory states." (Ibid., p. 128) Naz cites case after recent case where this precisely has been done. So Justices Singhvi and Mukhopadhaya, in dismissing out of hand the arguments made in 19.11 simultaneously disregard both original intent and living Constitutionalism. What a sad commentary on the state of Indian justice.
First Published: December 12, 2013, 9:44 PM IST