The Indian Supreme Court Ruling on Section 377: Part One

It’s fashionable to get “appalled” by India’s Supreme Court’s decision on homosexual sex.

Aadhaar 1On December 11, the Indian Supreme Court restored an 1861 law banning gay sex.

A corrective move by the Indian Supreme Court in overturning an “over-reaching verdict” passed by a Delhi High Court vis-à-vis the “constitutional validity” of Section 377 of the Indian Penal Code is being flayed publicly as usual.

The deafening outrage is the loudest from within India and beyond from among Indian expatriates, non-resident Indians and self-styled authorities on Indian systems.

Support to the Supreme Court decision comes from the most unimaginable quarters: American Family Association’s Bryan Fisher has nothing but praise for India’s controversial anti-gay sex law.

This is part one in a five-part series on the status and legality of India’s controversial decision to outlaw homosexual sex. 

In India, if a law interpreted as being “anti-gay” isn’t struck down by its highest court of the land, even if it’s absolutely beyond its jurisdiction to do so, it’s nothing short of blasphemy for the world at large.

That laws aimed to castigate gays are legislated by the Highest Court of Russia, Australia, even moved in the form of a bill to protect religious rights of the majority and “exclude gays,” by US Senator Mike Lee (R-Utah) supported by 11 co-sponsors, is conveniently overlooked. It doesn’t stop the US from being “disheartened” with the Supreme Court verdict while conveniently refusing to look within.

When the Indian Apex Court bench of Justices Singhvi and S J Mukhopadhaya reversed the Delhi High Court’s 2009 verdict and held that the 150-year-old Section 377 “does not suffer from the vice of unconstitutionality,” it only corrected a legal excess committed by the High Court in “legislating.”

That an amendment of the law is a legislative procedure laid down by the Constitution and courts are only empowered to determine and uphold the “legislative intent” that went behind the framing of the law, seems to be lost somewhere down the line.

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“It is relevant to mention here that Section 377 of the Indian Penal Code does not criminalize a particular people or identity or orientation. It merely identifies certain acts, which if committed, would constitute an offence. Such prohibition regulates sexual conduct regardless of gender identity and orientation,” said Justice Singhvi.

Part two in the five-part series will examine the role of India’s Supreme Court. 

Gajanan Khergamker is an independent editor and legal counsel with over three decades of experience. He heads DraftCraft – an India-based media-legal think tank. His areas of expertise include policy, inclusion, foreign affairs, law and diversity. His firm’s website is www.draftcraft.in and he can be reached at gajanan@draftcraft.inRead other articles by Gajanan.

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