SANSAD News Release December 15, 2013
December 15, 2013 is being observed in cities across the world as a “Day Of Rage” against the regressive judgement of the Supreme Court of India on December 11 overturning the historic decision of the Delhi High Court in 2009 that Section 377 of IPC was in violation of Articles 21, 14 and 15 of the Indian Constitution. South Asian Network for Secularism and Democracy stands in solidarity with the LGBT community in India and the world on this day of condemnation for a judgment that sets the clock back in the struggle for justice and hunan rights for people who find their sexual identity outside the heterosexual norm,
The Division Bench of Delhi High Court had declared that Section 377 IPC, created in 1860 and based on Victorian morality with notions of carnally and sinfulness was unconstitutional in criminalizing sexual acts of consenting adults in private. The Court had affirmed that the clarification would hold till Parliament chose to amend the law. This decision had been widely hailed as a big step forward in the struggle for Human Rights and effected a huge difference in the lives of LGBT in India and in the culture of the country.
The judgement of the Supreme Court Bench, comprising S J Mukhopadhyaya and G Singhvi in Suresh Kumar Kaushal v Naz Foundation delivered on December 11, 2013 overturns this decision on the ground that as only “a miniscule fraction” of the country’s population was LGBT and less that two hundred people had been prosecuted under Section 377 in the last 150 years, there was no sound reason for considering the section ultra vires. The learned judges also find that the distinction between people who indulge in “carnal intercourse in the ordinary manner” and those who indulge in “carnal intercourse against the order of nature” is non-arbitrary, so that it is legitimate to declare the latter as an offense and prescribe punishment for it. That a provision is prone to abuse in practice and can be used to harass, intimidate, and drive people underground, is not, they rule, a valid argument against its constitutionality. They further rule that in finding Section 377 as violating a person’s right to privacy, autonomy and dignity, the Delhi High Court relied extensively on judgment of other jurisdictions which cannot be “applied blindfold” for deciding constitutionality. The constitutional provision of capital punishment in India establishes the difference of the Indian condition.
This judgement, which set back Human Rights in India the day after the International Human Rights Day, has provoked outrage from a broad section of Indian society, including mainstream media and major political parties. It has given an impetus to the ongoing struggle for Human Rights in India. We, members of the South Asian diaspora in British Columbia, Canada, are proud to join with the LGBT community, and all people dedicated to the realization of Human Rights in protesting this decision.
The learned judges of the Supreme Court have supported their conservatism by pointing out that the Indian Parliament has not bothered to deal with the pre-constitution Section 377 in the past 60 years. They have also noted that there has been no attempt by the Legislature to address the recommendation of the 172nd Law Commission Report (2000) that this section be deleted. They end their report with the statement that their decision is only on the issue of constitutionality and that the Legislature is free to consider the desirability of deleting the Section. The struggle for rights is political: the demand now should be for the implementation of the recommendation of the 172nd Law Commission: DELETE SECTION 377 IPC.
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South Asian Network for Secularism and Democracy (SANSAD): 2779 Commercial Drive, Vancouver, BC. www. sansad.org; sansad@sansad.org