Shinder Purewal: Supreme Court of India is not to blame for ruling on homosexual sex
On December 11, the Supreme Court of India overturned the 2009 decision of the Delhi High Court that Section 377 of the Indian Penal Code (IPC) banning acts of homosexuality was unconstitutional. The media stories have attracted worldwide attention to this supposedly "regressive verdict" of India’s highest court of appeal. A careful reading of the 98-page judgement of the court, however, makes it clear that the court declared no such verdict on the issue of homosexuality.
The Indian Penal Code was written and imposed by the British colonial administration in India on October 6, 1860. Section 377 of IPC created a division between "natural" and "non-natural" sexual acts. The "penile-vaginal" act was declared natural and the "penile-non-vaginal" act was declared unnatural. The clause, at the time, was used to legitimize Judeo-Christian moral and ethical standards of the Victorian era. Needless to say, this clause made homosexual sex a criminal offence, even between consenting adults.
In upholding the constitutionality of the above clause, the Supreme Court of India has only upheld the concept of separation of powers, and checks and balances. The law making function belongs to Indian parliament while the courts are there to adjudicate. Unlike the British notion of parliamentary supremacy, however, the Indian constitution is closer to American constitutional supremacy. Therefore, the Supreme Court has the power to declare certain laws unconstitutional. It has done so in the past but, in doing so, the court has established a very high threshold for this act. According to the Supreme Court, “declaring the law unconstitutional is one of the last resorts taken by the court.”
The question before the High Court of Delhi in 2009 was very simple: Can morality be a ground for imposing restrictions on fundamental rights? The court discussed at length the rights enjoyed by Indian citizens under fundamental rights entrenched in the constitution. It came to the conclusion that consensual sex between adults, whether "natural" or "unnatural", is not the state’s business. Although the Indian state contended that the section has only been used upon the complaints of individual victims, the High Court declared Section 377 of IPC unconstitutional. It was, according to the court, a clear violation of individual rights.
This 2009 decision was challenged in the highest court of appeal in India. Holding a very high threshold for declaring laws unconstitutional, the Supreme Court refused to discuss the merits of arguments for or against homosexuality, albeit it cited many other cases and judgements from various other common law jurisdictions around the world. The judges made it clear in their judgment that “this court has merely pronounced on the correctness of the view taken by Delhi High Court on the constitutionality of section 377 of IPC and found that the said section does not suffer from any constitutional infirmity.”
This clearly is not a decision or an opinion on the legitimacy or the correctness of the ban on homosexuality. At the end of their decision, the judges clearly reminded both parties that the notion of separation of powers, and checks and balances should be respected. In fact, they stated very clearly that "the competent legislature shall be free to consider the desirability and propriety of deleting section 377 of the IPC from the statue book or amend the same." Thus, they have thrown the ball in the court of Indian parliament where it belongs. The elected officials should decide the next move. The Indian Supreme Court is not at fault.