While people were busy singing the praises of human rights on World Human Rights Day yesterday, Justices Singhvi and Mukhopadhyay of the Supreme Court of India were preparing quite a surprise. Today they struck down the 2009 ruling of the Delhi High Court which in turn struck down part of Section 377 of the Indian Penal Code. Popularly known as the anti-gay law, Section 377 is not quite that at all. Its specific provision reads as follows:
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation.-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
This law is entirely silent about the gay issue and entirely vague about what is meant by "against the order of nature". It is the latter, and not the former, that is the crux of the matter. If interpreted unfavourably, it would criminalise not just gay sex but also many things that men and women do together in private, even within marriage. In 2009 the Delhi High Court, in a lengthy judgement that can almost be read as a treatise on human rights for the modern world, argued that this section violated several aspects of the Indian Constitution, which incidentally came into existence nearly a century later. The vagueness of the law was one of the key criteria for their decision.
Today the Supreme Court has produced an equally lengthy judgement (can't these judges just say what they think in a few comprehensible words? It gets to be really heavy going when "impugned" and "injunction" and "counter-affidavit" keep looming at every turn). Their judgement deconstructs the Delhi High Court judgement in great detail and refers to a number of past court cases related to 377, some of them nearly a hundred years old. All of these are full of embarrassing (even to me!) details about sex, usually involving A's "injunction" going into B's "counter-affidavit", if you know what I mean. It gets even more embarrassing as unintended puns like "thrust of Section 377" start to appear (page 4).
But jokes apart, where all this is going starts to become clear on page 78, when their lordships sarcastically tell us that the Naz Foundation (which filed the original case in the Delhi High Court) was "singularly laconic" about something and "miserably failed" at something else. No, clearly this is not going well for the Naz folks. The learned justices add that a "miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders" (at last count, that miniscule fraction was more than the entire population of most countries). They castigate the Delhi High Court for "its anxiety to protect the so-called rights of LGBT persons".
And now to the crux of the matter - the vagueness of Section 377. On page 83 their lordships tell us that "vagaries of language must be borne in mind and prior application of the law must be considered". In other words, vagueness is something we just have to live with. In support of this view, they dig out a 1970 judgement which says:
"...if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language permitting, the construction sought to be placed on it, must be in accordance with the intention of the legislature..."
In the present case, this suggests that any vagueness in Section 377 must be resolved by finding out what the British had in mind when they framed the law in 1860. Fascinating idea.