The Indian Supreme Court Ruling on Section 377: Part Two

The Indian Supreme Court is only empowered to examine the “intention” of the legislature.

Aadhaar 20

Credit: The Hindu

In upholding the law, the Indian Supreme Court is only empowered to examine the “intention” of the legislature.

And, in that, the Supreme Court has laid that the onus of deleting the provision rests upon the legislature. Where the question of Section 377’s constitutionality is concerned, there was no ambiguity.

India is the world’s largest democracy and ruled by laws legislated by the people who are voted to power again by the people. So, to remove Section 377 or amend it suitably to exclude consenting adults in private is the job of the parliament.

The Supreme Court judgment read:

“Since 1950, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law.”

But the reasoning cuts no ice when it comes to chest-thumping reactions from Indians, particularly Indian expatriates.

So, there’s a surge in global support for local activists who have waged “a relentless war for same-sex relations to be legalized.” Dozens of Bollywood stars have come forward to criticize the decision to reinstate Section 377 of the Indian Penal Code which bans “sex against the order of nature” and is widely interpreted to mean gay sex.

Among those “hurt” are Aamir Khan and John Abraham who described the judgment as “very intolerant and violative of basic human rights.” Freida Pinto of Slumdog Millionaire tweeted that she was “absolutely appalled by such narrow mindedness,” and more. That not a single celebrity chose to flay the petitioners who belong to hard-nosed religious groups and their associated ideology, reeks of hypocrisy.

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So, for the record, here goes a list of the petitioners who moved the Supreme Court to reinstate Section 377. Delhi Commission for Protection Child Rights, Suresh Kumar Koushal, an astrologer, Krantikari Manuvadi Morcha, Trust Gods Ministry, Late VHP leader BP Singhal; Apostolic Churches Alliance, Utkal Christian Foundation, All India Muslim Personal Board, SK Tizarawala, a representative of Baba Ramdev and Petitioner in person from Joint Action Council Purshottaman Mulloli and petitioner in person Ram Murti.

Part three in the five-part series will explore Section 337 in The Indian Penal Code in historical context. 

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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