A lost opportunity

There are occasions when the finality of a judicial verdict is in unfortunate conflict with the interests of justice. The contentious case of Section 377 of the Indian Penal Code is one such. By declining to

review its retrograde decision to uphold the validity of Section 377, the Supreme Court has lost an opportunity to revisit a verdict that has drawn widespread criticism for failing to extend constitutional protection to sexual minorities. While it is true that the scope for review is limited, there was some hope for the LGBT community when the Union government came forward to seek a review of the December 2013 verdict in Suresh Kumar Koushal . Many jurists, activists and political leaders felt the ruling overturned a well-reasoned judgment of the Delhi High Court, which had read down Section 377 to de-criminalise consensual sex among adults irrespective of gender. It was seen as incongruous with the mores of our times. The verdict required a review on merits because of some intriguing conclusions. The Bench had ruled that “those indulging in carnal intercourse against the order of nature” constituted a different class, and that Parliament could treat the category differently from others. It had failed to see that ‘order of nature’ is itself an artificial construct rooted in the outdated view that alternative sexuality is unnatural. It had dismissed the LGBT community as a minuscule fraction of the population, as though the relative smallness of a group disentitled it to constitutional protection.

While holding that Section 377 suffered from no infirmity, the Bench had said it was open to the legislature to delete or amend it. The verdict had cast a shadow of doubt on the judiciary’s decisiveness in enforcing fundamental rights. In a recent case concerning death row convicts and mercy petitions, it was reaffirmed that the Supreme Court was best equipped to adjudicate the content of fundamental rights. “This Court has always granted relief for violation of fundamental rights and has never remanded the matter,” it said. The Bench that declined to review the verdict could have taken inspiration from these words and examined afresh the section’s chilling effect on fundamental rights, instead of leaving it to the legislature. A curative petition could provide one more avenue of redress, but its scope is limited to judgments passed in violation of principles of natural justice or in circumstances suggesting bias on the part of the court. The situation is ripe for a legislative solution, but the process may not be easy, for not all members and parties will be able to resist the influence of religious conservative groups that are likely to oppose any amendment.