The writ petitions before the Delhi high court had challenged the validity of section 377 of the Indian Penal Code (IPC) and the petitioner was an organization representing LGBT persons. It alleged harassment, distress and injury as a result of the penal provision. It invoked their fundamental right to life and personal liberty guaranteed by Article 21 of the Constitution. It was asserted that the expression “order of nature” in Section 377 IPC was vague and it resulted in hostile discrimination. The high court had upheld their challenge and read down section 377 IPC so as to protect the proscribed conduct as long as the same was consensual and in private by adults above the age of 18 years.

The supreme court (SC) has reversed the high court judgment without meaningful discussion of the nature of fundamental right claimed and without setting out grounds for its conclusions and without posing and answering certain vital questions. The SC seeks refuge behind absence of factual foundation in the writ petition and the theory of judicial deference to legislative wisdom and the law enjoying presumption of constitutional validity.

When a provision of law is questioned as facially unconstitutional the laying of factual foundation becomes unnecessary. This is quite apart from the petition being a PIL which is more often than not court driven by directions seeking information from parties including the State. Then there was grave and imminent danger to the fundamental rights of LGBT persons due to the very existence of Section 377 IPC as it is per se, a source of distressful existence for them. It demeans and criminalises them.

The real question was about the limitation on the State’s power to criminalise such conduct. The question whether Section 377 is vague and arbitrary as also the question whether it abridges the fundamental rights of LGBT persons to live their lives and engage in consensual sex in private as per their choice are central to Article 21 being its core, are facial questions. The breach of these fundamental rights deserves strict scrutiny was yet another facial issue. The HC held it to be so and answered accordingly. The SC does not deal and reverse.

SC in para 44 holds that “vagueness and arbitrariness go to the root of a provision”, but it does not proceed to examine whether Section 377 is vague. What is meant by the undefined expression “order of nature”? The court does not dwell on this. It quotes para 17(3) and (4) of 1992 CrLJ 1352 Brother John Antony [without referring to it] that “it could be said without any hesitation of contradiction that the orifice of mouth is not, according to nature, meant for sexual or carnal intercourse”. The high court judgments referred to also do not expound the expression “order of nature”. It is assumed that orifice of mouth if used for intercourse is contra “order of nature”. No basis is disclosed for saying so. It is totally erroneous. This assumption demonstrates the vagueness of “order of nature.” The Kerala high court in 1969 CrLJ 818 holds that insertion of the male organ between thighs of the boys was also against “order of nature”. In Brother John Antony [(1992) CrLJ 1352] the holding the male organ by the hands was held to be against “order of nature”.

These conclusions demonstrate the vagueness of the expression “order of nature” which constitutes the most significant element of Section 377 IPC. How is this “order of nature” to be construed to discover legislative intent? Is it to be understood according to thoughts of morality prevalent in medieval Great Britain? Is it to be understood in accordance with the Islamic texts? Is one to take into consideration the principles of Hinduism which many understand to be permissive and accommodative? Is one to ignore the developments in this regard in the West particularly the tolerant spirit of Pope Francis? Are we to understand “order of nature” according to the preaching of Baba Ramdev who considers it to be a disease or according to Sri Sri Ravishankar who says homosexuality is not a crime in Hindu culture? Are we to overlook that several species of birds, fish and mammals are naturally homosexual in behaviour? The mandate of nature cannot be different for different people living in different parts of the world or professing different religions.

If the supreme court had considered these aspects the inevitable answer would have been that the expression “order of nature” is utterly vague. Different statutory authorities and different judges cannot be allowed to pour into this expression just whatever is not to their liking. This interpretation exposes the dangers of allowing such vague expressions to remain in the statute book. It need not be reminded that the sanction provided under section 377 is punishment of imprisonment for life or up to 10 years. Assuming, the assumption made is right, it is posited on a legislative assumption which was under challenge. The very assumption is used to uphold the provision. The issue of vagueness is not examined and SC does not answer.

The approach to the Article 21 issue is no different. The SC agrees substantive due process has been read into the Constitution as per Maneka Gandhi and the law must satisfy the test of just, fair and reasonable.

The court also accepts that the right to privacy and living with dignity has been read into Article 21. Reference is made to Suchita Srivastava [(2009) 9 SCC 1] and Mr X [(1998) 8 SCC 296]. Having said so, the SC castigates the HC for applying judgments of other jurisdictions blindfolded (Pr 52-53) and then the SC proceeds to declare that section 377 IPC is constitutional (Pr 54). There is absolutely no discussion as to whether Section 377 IPC passes the strict scrutiny test of substantive due process and qualifies to be a just, fair and reasonable law. There is no decision on this point.

The more important question neither posed nor answered is whether the choice of the way of life and consensual sexual behaviour forms the core of Article 21 as part of right to life and personal liberty. Article 21 would require the existence of compelling state interest or public purpose. Section 377 has not been tested on this anvil.

It was expected that our SC, while dealing with such an important matter and involving interpretation of the constitutional provisions, would examine the matter thoroughly and note the global developments on this aspect. It is surprising that the SC does not notice the judgment of the US in John G. Lawrence Vs. Texas, 156 Led 2d 508 rendered on 26.06.2003 and the judgment of the European Court of Human Rights in Dudgeon Vs. The United Kingdom rendered on 22.10.1981 where the anti-sodomy laws involving conviction and imprisonment had been struck down.  These cases related to consensual sexual intimacy in private between two adults. In Romer Vs. Evans 134 Led 2D 855 (1996) the US supreme court struck down a law which treated homosexuals, lesbians and bisexuals as a solitary class persons merely on account of their “ orientation, conduct, practices or relationships” in order to deprive them of protection under anti-discriminatory laws.  Relying on this in the case of Lawrence the US supreme court holds “these matters, involving the most intimate and personal choices, a person may make in a lifetime, choices central to personal dignity are central to the liberty protected by the 14th Amendment. At the heart of liberty is the right to define one’s own concept of existence...”. Lawrence overlooks Bowers which had in 1986 upheld the anti-sodomy law, as ‘its continuance as precedent demeans the life of homosexual persons’.

Section 377 is stigmatic, so is the SC judgment. The bigger point is that our SC does not notice these developments. It simply side-tracks them, although they were relied upon by the HC on the ground that the western experiences cannot be transplanted in our country as social conditions and general intellectual level is different. The several previous judgments relied upon only required the court to critically examine foreign judgments and use them with circumspection.

The court treats Section 377 as a prohibition which criminalizes certain acts and not particular people, identity or orientation, and concludes that “such a prohibition regulates sexual conduct regardless of gender identity and orientation”. It is true that Section 377 is gender neutral but it does criminalize acts of people who choose the prohibited sexual conduct as a way of life. It bars and bolts such conduct even in privacy of homes and notwithstanding the conduct being consensual. The dichotomy drawn by the court is unsustainable.

The judgment is singularly notable for absence of reasons for the conclusions and falls foul of the basic postulate of judicial adjudication that “judgment is a statement given by the judge of the grounds of a decree or order”. The SC judgment is more like an executive fiat. It is like a decree of ecclesiastical courts and a command of Henry VIII. It should be reviewed at the earliest.

Section 377 does not constitute even a moral view of the governing majority in the parliament. It is a legal provision of colonial India and at best a moral view imposed by the British colonialist. It was enacted by the Governor General of India in Council which was not a body elected by the people of British India or any section of it. It continues as existing law under Article 372. Article 13(1) provides that existing laws would continue only in so far as they are consistent with fundamental rights and to the extent of inconsistency they would be void. Such laws are not entitled to judicial deference in the same manner as a law made by our parliament. More so, when the very country, the UK, which imposed section 377 on us has modified its own 1861 Act by the 1967 Act to provide that homosexuality in private by consenting individuals over 21 years of age would not be a criminal offence. Northern Ireland, like India, continued to retain the anti-sodomy law imposed on it despite the change of law in the UK. However, the European Court of Human Rights struck down the legislation operating in Northern Ireland. Why should we carry the cross of Section 377 on our back anymore?