On criminalisation and pathology: a commentary on the Supreme Court judgment on Section 377
The judgment delivered last week by the Supreme Court of India (1), upholding the constitutionality of Section 377 of the Indian Penal Code (IPC), overturns a judgment by the Delhi High Court in 2009 that decriminalised sexual activity between two consenting adults. This judgment has unleashed a veritable firestorm of protest in the public space. There has been a heated and vitriolic debate on this issue in the print and social media, as well as television, with public opinion, in the main, being critical of the judgment.
The Delhi High Court judgment (2) had led to a similar, yet diametrically opposite outpouring of commentary, with most people welcoming it. However, religious and conservative sections of the population had voiced the concern that it heralded the legitimisation of perversion of sexual mores and would damage the structure of society. At the heart of this debate is the question as to whether homosexual activity with mutual consent is a normal variation – a difference in sexual orientation – or a pathological entity.
The discourse of the legal system, which criminalises homosexuality, and that of scientific thought, which pathologises it, have gone hand in hand in many ways. It is also true that in many ways, the two have informed each other and that both are, in a sense, a reflection of how society views homosexuality.
Psychiatry, the branch of medicine that has dealt most closely with sexual desires and orientation, has also probably contributed to the negative views on homosexuality. It earlier considered homosexuality a sexual perversion and attempted, rather famously, to "treat" it with various bio-medical and psychological means. It was only in the second half of the twentieth century, which saw developments in psychiatric classification, that the main diagnostic systems in psychiatry, ie, the Diagnostic and Statistical Manual of Mental Disorders (DSM) and the International Classification of Disease (ICD), declassified homosexuality as a clinical disorder, seeing it instead as an alternative sexual orientation that is intrinsic to the individual. An observation made with the tongue firmly in the cheek actually described this as one of the most spectacular successes of psychiatry, because almost overnight, millions of people were "cured", as their "disorder" simply disappeared. The declassification of homosexuality as a clinical disorder has also highlighted the fact that with the evolution of scientific knowledge and social change, what is seen as scientific "truth" in a particular period can change over time. It is also true that this shift in the psychiatric stance, though buttressed by scientific research, has largely been driven by a growing awareness of the rights of the individual. The acceptance of the existence of alternative sexual orientations is also reflective of a larger awareness of variations not only in neurochemistry, but in individual psychology as well.
This development has been paralleled by changes in legal views in many parts of the world. It is interesting that internationally, legal opinion on homosexuality, and even the acceptance of sexual orientation differ widely. Some countries, such as India, many of its neighbours, and several countries in Africa and the Middle East, continue to view homosexuality as a crime, for which punishments ranging from a few month’s imprisonment to death have been prescribed. Some countries have, over the years, decriminalised homosexuality, but with riders. These may include not allowing same-sex marriage (Australia being a recent case in point). Other countries have legalised homosexuality and allow same-sex marriage. What is interesting, however, is that the two narratives – that of pathologising and that of criminalising – have not continued apace.
The Delhi High Court judgment of July 2009 states:
We declare that Section 377 IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile-non-vaginal sex and penile-nonvaginal sex involving minors. By ‘adult’ we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion.
This judgment, which deserves to be read in its entirety, raises some rather fundamental issues. It raises the point of a "constitutional morality" rather than public morality that should be the touchstone of good law. It also goes beyond the Section to turn its gaze on the groups of people that the Section affects. Thus, it clearly recognises the reality of a group of people with a different sexual orientation, it recognises the problems involved in the criminalisation of non-procreative sexual activity, and it acknowledges the discrimination that people with an alternative sexual orientation have to face due to criminalisation.
This judgment introduced into the arena of public debate the legal concept of "reading down" or "reading into" a provision of law. Thus, while Section 377 of the IPC was not dismantled, its significance and implementability were clearly diluted. The judgment effectively whittled down the significance of the Section, suggesting that it violated certain constitutional human rights, namely, those to life and liberty, equality before the law, and rights protecting individuals from discrimination. Effectively, what the judgment said was that since Section 377 violates basic rights, its validity is questionable. Interestingly, the 172nd Law Commission’s report in 2000 (3) had been quite emphatic in its recommendation for the deletion of Section 377, ending with the rather wry comment that the "…only content left in Section 377 is having voluntary carnal intercourse with any animal. We may leave such persons to their just deserts."
In response to the High Court judgment, a two-member bench of the Supreme Court opined in a detailed 98-page judgment delivered on December 11, 2013:
In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable.
It goes on to say:
While parting with the case, we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said Section does not suffer from any constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.
What this boils down to is that in the opinion of the Supreme Court, human rights are not being violated by Section 377. The Court marshals a number of arguments in support of its view. For example, it argues that there is insufficient evidence of discrimination, that the fact that there have been violations of privacy and liberty has not been established, and that therefore, the reading down of the Section is invalid.
At the heart of the matter, however, there are two basic questions. These are as follows.
- Is an alternative sexual orientation acceptable to society, or is it viewed as either deviance or pathology?
- If it is accepted, are the rights of that minority as valid as the rights of others?
Effectively, this judgment shifts the legal gaze back to the carnal act rather than acknowledging the possibility that there is a minority group of people with an alternative sexual orientation. By failing to recognise the identity of this group, it negates both their identity and importance. Also, by denying their identity, it dismisses the existence of the discrimination and violation of human rights faced by this group of people. The judgment also effectively criminalises all non-procreative sexual activity, even when it is consensual and between adults. Essentially, the difference between development in medical discourse and legal discourse lies, here, on the bedrock of the acknowledgement of the rights of both the minority and the individual. This is where I think the judgement falters on the criteria of both reasonableness and inclusiveness.
The Court also takes the position that it does not have the mandate to repeal Section 377 and that this falls within the scope of the legislature rather than the judiciary. While it is for constitutional or legal experts to opine on this matter, in my opinion, if we accept the primary premise that there are alternative sexual orientations, it seems clear that Section 377 represents an infringement of rights in a myriad ways. In the face of such infringement, the "reading down" by the Delhi High Court seems entirely appropriate to me. The Supreme Court also does not suggest that the legislature should change the law, but that if the law has to be changed, it must be changed by the legislature.
Not surprisingly, the Supreme Court’s judgment has given rise to a veritable barrage of criticism, with Pratap Bhanu Mehta saying in the December 12, 2013 issue of the Indian Express (4), "The court has, in one fell swoop, extinguished the flame of humanity and reason from our Constitution. It has given free rein to prejudice, hollowed out the meaning of constitutional protections. And in doing so, it has undermined its own authority."
Rajeev Dhavan, writing in the Times of India on December 13, 2013 (5), says "This judgment is hurriedly written, deeply flawed, contradictory and contrary to constitutional understandings."
These are both rather strong criticisms of the judgment, and difficult to disagree with.
It is interesting to note that the medical opinion offered by the respondents, which included depositions by mental health professionals, of whom the author was one, seems to have been summarily brushed aside. This, to my mind, is rather troubling. It is necessary for conversations to take place between science, society and the law. While these three entities are not necessarily dependent on one another, the fact is that the thinking in one can and will influence the others.
It is my opinion that Section 377 criminalises a facet of human behaviour that is integral to the personal and sexual identity of some people. This facet can in no way be seen as deviance or psychopathology. It seems clear to me that the latest judgment needs to and will be challenged, whether in judicial review or on the floor of Parliament, and it also seems clear that this challenge will be driven by societal pressure. Based on the indications so far, it appears that the judgment is being viewed as both regressive and unmindful of the rights of a minority. It is my belief that for the change to be facilitated science, society and the law-making process need to engage with one another and that if any of these ignores the others, it will be to the detriment of all three.
Conflict of interest
The author is one of the mental health professionals cited as Interveners IA No 9/2010, who offered medical opinion to the Supreme Court.
- Naz Foundation v Government of NCT of Delhi. Delhi High Court Judgment [Internet]. 2009 July [cited 2013 Dec 19]. Available from: http://lobis.nic.in/ dhc/APS/judgement/02-07-2009/APS02072009CW74552001.pdf
- Law Commission of India. One hundred and seventy second report on review of rape laws March, 2000. Available from: http://www.jeywin.com/wpcontent/ uploads/2010/03/Report-172-Review-of-Rape-Laws.pdf
- Suresh Kumar Koushal and another v NAZ Foundation and others [Internet]. Supreme Court of India: Civil Appeal No. 10972 of 2013 [cited 2013 Dec 20]]. Available from: http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070
- Mehta PB. Justice denied. Indian Express [Internet]. 2013 Dec 12[cited Dec 19]. Available from: http://www.indianexpress.com/news/justicedenied/ 1206581/0
- Dhavan R. SC judgment on Section 377: a flawed pre-retirement order written in a rush. The Times of India [Internet]. 2013 Dec 13 [cited 2013 Dec 19]. Available from: http://timesofindia.indiatimes.com/india/SC-judgment-on-Section-377-A-flawed-pre-retirement-order-written-in-a-rush/ articleshow/27539754.cms