Shinder Purewal: Supreme Court of India is not to blame for ruling on homosexual sex

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      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.



      James G

      Dec 12, 2013 at 10:38pm

      What a complete cop out. Standing by laws written in 1860 on the basis that they need be replaced first by new legislation is certainly ultras conformist but in no way legitimate unto it's own. Indian law of the time also allowed for indentured labour. If that had been found still in practice and protected by arcane law, it's striking down by the High Court would have been cheered widely and not appealed to the Supreme Court. This is bigotry run amok. In Canada, also following British jurisprudence, our Supreme Court had no difficulty striking down abortion laws without pretending to first need new legislation.


      Dec 13, 2013 at 1:43am

      @James G - Canada has Parliamentary supremacy not Constitutional Supremacy. It is easier for the Supreme Court in Canada to void laws and amend the Constitution. In India that is not the case except under extreme circumstances. The plaintiffs were not able to demonstrate sufficient duress and prejudice under this law - the Supreme Court mentioned this in their ruling too.

      Not a Cop Out

      Dec 13, 2013 at 7:37am

      This is not a cop out but an expression of the way the Courts should interact with an elected parliament. The cop out is the parliament of India not acting to repeal the law.


      Dec 13, 2013 at 10:00am

      I hope that Professor Purewal remains in the political science department - because he clearly doesn't understand legal argument.

      Also, Shinder Purewal has some "interesting" opinions about homosexuality. Google the name and read some of the articles about his views on (for example) the Gay Pride parade.

      Never assume that an author is unbiased ...

      James G

      Dec 13, 2013 at 10:02am

      The typical neo-con argument against 'activist judges'. An attitude designed to halt social progress for those who make one uncomfortable. We wouldn't want that! What next, allowing a sex-positive Pride Parade? Oh, wait, that's strictly for straight people at Mardi Gras, Carnivals and Carribana.

      Activist Judge

      Dec 13, 2013 at 5:09pm

      There shouldn't be "activist judges". A judge's role should be to make a decision between aggrieved parties within the context of the laws of parliament.

      There should be activist politicians, and people encouraging their politicians to promulgate laws for social equality so that judges can then make decisions based on those laws. Advocating "activist" judges simply corrupts democracy, because judges and the courts are in no way democratic. The legal system is purely authoritarian, and must therefore be subservient to the will of a democratically elected parliament.

      Shocked Lawyer

      Dec 14, 2013 at 9:01am

      I would have thought the author would have done some reading on the matter before writing this article, but it appears not. Strong recommendation to the University to stop wasting its money on his salary.

      Navtej Singh

      Dec 14, 2013 at 10:14am

      Dr. Purewal is a known Radio, Newspaper commentator and undeclared advocate of the Indian ruling elite. He always stands by the power. If any draconian law is being enacted by the rulers it is the duty of courts to save the society from them. If you are to Google please Google Justice Singhvi who gave this judgment he is known right wing judge who gave numerous judgments against the vulnerable.

      Dr Asmit Sheikh

      Dec 14, 2013 at 6:41pm

      We have all heard the arguments against homosexuals... many of the arguments deal with the religious aspects of Christianity or other major religions. Others claim it is unnatural and it is wrong. Some people will even go as far to say it is a disorder and can be "cured". There are camps and groups designed to make gay men and women straight by using religious teachings and associating their natural desires and impulses with pain. There are even electric shock therapy to "treat" the condition.

      Science can now prove that sexual orientation is completely genetic and not controlled by a personal decision. They now can predict, from the mother's womb, what child will be straight and what child will be gay. The advances in science confirm that it is not a choice, so if one was to claim a "cure" they would have to alter a person's genetic make-up.

      From a scientific standpoint, when some argues that homosexuality is unnatural we can simply point to nature. Animals do not limit their sexual expeditions to the opposite gender. They relieve themselves on other animals. Period. We can often find male dogs humping other male dogs. Sometimes we will also see male dogs attack females and not be interesting in mounting them. The next point will be, "But we're not dogs. We're more advanced!". True, but our biological code is limited. Our minds may expand and evolve every moment of everyday, but our bodies can only advance so far in the span of a lifetime. We can't simply wish away our sexual urges... it doesn't work. We can train people to fight their desires, but that will not remove what is was there.

      Electric shock therapy may stun the body and frighten an individual, so they may learn to stay away from certain images and people, but that doesn't mean they will automatically become straight. It is a commonly known fact, at least in the scientific world, that a person can be traumatized to stay away or fear a certain thing/action. Yet, this training can be "unlearned" and relapses are bound to occur. It is also damaging to the body and the mind. Can you imagine growing up and being told by your peers and society that you are "unnatural" and you need to be "cured" because you are attracted to the same gender?

      From a religious standpoint- It is said that God is perfect and does not make mistakes. So how can a person condemn homosexuals?

      Marty Fufkin

      Dec 16, 2013 at 10:04pm

      I don't mind reading contrary points of view, and I might have considered this reasoned debate, enlightening me on how the justice and parliamentary systems work in a foreign country. Except, this is the guy who suggested that the Pride Parade should be banned. So I'm aware of the bias in this guy's article. I'm not buying it. This appears to be the writing of a homophobe who is justifying his own anti-gay viewpoint.

      Aside from that, why is the Straight running this? Again, contrary points of view should be welcome, but the Straight isn't India's independent weekly, it's Vancouver's. If you're going to run debates about policy in foreign lands, let them be enlightening, not just promoting an anti-gay agenda. Leave the inflammatory debate for local issues.