By Mugdha Kiran
By upholding the Article 377 (contained in chapter XVI i.e. Of offences affecting the Human Body, of the IPC under the sub chapter titled of Unnatural Offences, Justice Singhvi, through his last judgment on Suresh Kumar Kaushal vs NAZ Foundation has made the right to a life of dignity and equality of the LGBT, the minuscule minority (Lesbians, Gays, Bisexuals and Transgender) community a pipedream. The Supreme Court has turned the clock of justice by several decades, which is extremely unfortunate considering that it comes from an institution heralded as the stalwarts of the prerogatives of the citizenry.
377. Unnatural Offences- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.
Sans the legal parlance, it simply states that anyone involving in penal- non vaginal sex must be put in penitentiary.
The 2 judges bench, in its 98-page judgment, has limited itself to the interpretation of the laws of the land rather than taking cognizance of the fact that much water has flowed down the river since the law was enacted in 1860. The Supreme Court has a moral obligation to read down laws which have become archaic and no longer conforms to the beliefs of the society as it had done in the Anuj Garg vs the Hotel Association of India (2008), John Vallamattom vs Union of India (2003) and Mithu vs State of Punjab (1983). The nonchalance of the judiciary to recognize nefelibata (in terms of sexual orientation) (calling them the so called LGBTs in their judgment),let alone addressing their concerns of the which otherwise has shown considerable judicial activism in matters relating to policy (judgment striking down the license of all the 122 applicants in the 2G spectrum case), environment (the Dec 14 order directing the Railways Ministry to slow down trains while passing through dense forests so as to save the elements from harm) et al is perturbing.
The inherent contradictions in the judgment that have come to the fore makes the Courtroom no.1 (where the operative part of the judgment was read out by the retiring judge on Dec 11) reek of prejudice against this community. Not questioning the locus standi of the appellants, who approached the Court through Article 126 and not through 32 and being pejorative of the admissions of reputed psychiatrist Dr. Shekhar Seshadri and others contending that sexual orientation is a congenital immutable characteristic, relegating Articles 14 (right to equality), 15 (prohibition of discrimination on grounds of sex) and 21 (right to life) to the background while writing the verdict, overlooking the misuse of the grisly law to hound the adults indulging in consensual sexual activities in private etc buttresses the suspicion.
Shouldering the onus of upholding the law and order in the country, the SC must also mull over the socio-cultural consequences of its ruling. Its sentence will stripe the community of their privilege as citizens entitled to a life of dignity free from fear and total manifestation of their demeanor. Incapability to come out from their respective lairs will coerce many of them to work as prostitutes and divest them of the bounties of public health schemes (most government hospitals refrain from Sen Reassignment Surgery and are apathetic towards them), not to mention the screeching halt which the recent awareness and sensitization will come to. The percentage of HIV/AIDS positive LGBTs is in 40s in contrast to 0.32 among the heterosexuals. The initiative taken by activists had brought down the number to 8.8%. Seeing a downtrend in this is like setting the Thames on fire, because the trepidation of being harassed by the cops is going to haunt them.
The un-acrimonious stance taken by the denizens cutting across the sexual orientation divide has led the Congress to lend credence to the sentence of the High Court, whereas the BJP didnt have the audacity to come out in defense of the decision of the apex court. The gain in grounds by voices in support of the miniscule minority whereas the muted voices of dissent endow the situation with apposite opportunity to strike down the criminalization of consensual penile non vaginal sex by adults in private without any compunction.
The judiciary and legislature must move a leg before the community is asphyxiated and the verdict is remembered as a sacrilege as grave and lugubrious as the Emergency or the Habeas Corpus case in the chronicles of the court.
The author is currently pursuing B.Sc.(H) Physics in St. Stephens College, Delhi. She engages in deliberating and debating issues consequential on events having ramifications on the national and international canvass. Highly motivated to attain an egalitarian society through conscientizing the citizenry, discussion with the intellects and head on engagement with the problem, she aspires to become a public servant.