I do NOT live in a country whose Constitution allows for discrimination against people based on their sexual preference. That Constitution is defended by the Supreme Court to protect and to strike down laws that are unconstitutional. The SC is failing to do its JOB by letting illegal laws stand and by passing the buck to the legislature.

I do NOT live in a country whose Constitution allows for discrimination against people based on their sexual preference. That Constitution is defended by the Supreme Court to protect and to strike down laws that are unconstitutional. The SC is failing to do its JOB by letting illegal laws stand and by passing the buck to the legislature.

Dear SC – We Want you to do your JOB!

How easy it is to lose faith in an institution you respected. When it comes to finding Section 377 unconstitutional, it’s one whammy after another. After the Indian Supreme Court failed abysmally in its duty of protecting the fundamental rights of citizens, comes the latest news that the review petition filed by the Naz foundation and the government itself has been rejected. Till now, the saving grace of the Indian setup was the intelligent, progressive, and aggressive judiciary who protected our fundamental rights as required by the Constitution. It is now apparent that those duties have been forgotten or actively ignored.

I’m sick and tired of hearing people defend the SC by saying “It’s parliament’s job to create law, not the court’s”. No shit. But they are conveniently ignoring another crucial aspect of the judiciary – namely the power of judicial review. This is so important that it’s enshrined in Article 13 of the Constitution. Here it is:

  1. All pre-constitutional laws, if in part or completely in conflict with the Constitution, shall have all conflicting provisions deemed ineffective until an amendment to the Constitution ends the conflict. In such situation the provision of that law will again come into force, if it is compatible with the constitution as amended. This is called the Doctrine of Eclipse.
  2. In a similar manner, laws made after adoption of the Constitution by the Constituent Assembly must be compatible with the constitution, otherwise the laws and amendments will be deemed to be void ab initio.
  3. In such situations, the Supreme Court or High Court interprets the laws to decide if they are in conformity with the Constitution. If such an interpretation is not possible because of inconsistency, and where a separation is possible, the provision that is inconsistent with constitution is considered to be void. In addition to article 13, articles 32, 226 and 227 provide a constitutional basis to judicial review in India.

Oops. Looks like not only is it parliament’s job to create laws, it’s the Supreme Court’s job to ensure that those laws are consistent with the Constitution. Otherwise those laws are invalid.

Ding ding ding! Checkmate.

So let’s have no more bullshit about how the Supreme Court only has to interpret the law and that it’s not its job to create law blah-de-blah-de-blah. What we want…what we demand is that the SC follow the damn Constitution and strike down laws that go against it. That is its job. That is its mandate. That is one of the prime purposes of its existence!

It gets even better. Over the years, the Supreme Court has repeatedly held that privacy is a fundamental right in India. In fact, the scope and breadth of the fundamental rights have been constantly increasing as courts not just in India, but around the world take a more and more expansive view of phrases like “right to life”. So it’s hardly surprising that the Delhi HC held that the freedom to do whatever you want in your bedroom was a fundamental right.

But if we are to take the recent rulings of the SC at face value, we are to simply accept that the government has a right to pry into people’s bedrooms. That the criminalization of a person’s sexual activities are in no way incompatible with the Constitution! This is not the nature of the country I’m living in!

If this Section 377 is not unconstitutional, please tell me what the hell IS unconstitutional.This is as unconstitutional as it gets! Every civilized country in the world has recognized this simple fact. Hell, most intelligent Indians have recognized it too. And the institution which is supposed to be on top of such things, which is charged with upholding the liberal values of our Constitution feels it’s ok! I’m not even sure anymore whether or not this is all some huge practical joke by the SC.

And let’s get one thing out of the way. Section 377 is not just about gays and homosexuals. It affects everyone since it criminalizes all so-called “unnatural” sexual activities…including oral sex between consenting adults! It makes criminals of us all. Are you happy with that? Are you happy being a criminal in your own country by expressing love in the privacy of your room? This is abhorrent and goes against all principles of natural justice.

And the SC has allowed this blatantly unconstitutional law to stand??? Unbelievable! What the f*** is wrong with them?

Dear SC. Please note that we’re not asking you for something special. We just want you to do your bloody job!

Comments

  1. The Supreme Court has surely lost a historic opportunity to expand the rights and liberties of the people of our country. By terming the LGBTQ community as a ‘miniscule minority’, Justice Singhvi pushed back the progress made by decades of judicial activism by many years. Isn’t the defining principle of any court of justice is that the rights and liberties of even a single individual shouldn’t be violated? Why this prejudice towards a particular community?

  2. simple girl says:

    I am fed up of people defending the law, I am fed up of people telling me that it is an unimportant issue with respect to India. I do not see any hope .. simply no hope..

  3. Abhishek says:

    It is a farce to expect constitutionality in India. 2 questions:

    Q1. When have we EVER respected the constitution?

    Q2. And does our constitution even respect fundamental rights?

    Please pull out the Indian constitution and read it. It is a confused hodge podge book ridden with more holes than Swiss cheese. The size and the verbosity of our constitution renders the document essentially meaningless. It is almost a miracle India still has some semblance of rule of law.

    For instance, pull out Part IV and read the “Directive principles of state policy”. Did you know that removing alcohol is one of the “directive principles of state policy” placed in the Constitution? Fortunately, Part IV of the constitution is not legally enforceable. But it tells you how seriously our founders took the Constitution that they were ready to fill it up with garbage that isn’t even legally enforceable!

    Take out Part III A and read the most important part: Fundamental rights. In the whole democratic world, there exists no greater chicken hearted copout than Part-IIIA of the Indian Constitution.

    You get free speech as long as you don’t hurt anyone’s feelings. Otherwise, why is Sanal Edamaraku, who exposed a fake miracle in the Bombay Church, hiding today in Finland because he is being hunted by Mumbai police for hurting Christian sentiments? Why is Salman Rushdie’s Satanic Verses banned in India?

    All religions are equal but minority religions are more equal than others: Otherwise, how come every Muslim girl who finishes Class X gets a special taxpayer funded reward of Rs. 30,000? How come every Muslim woman in Karnataka who marries receives a taxpayer funded award of Rs 50,000 from the govt (Shadi bhagya scheme)? How do you explain the Haj subsidy? And why is there no uniform civil code?

    All citizens are equal but women are more equal than others: Why is it that India’s rape laws, sexual harassment laws are NOT gender neutral?

    And lastly, do you know that if Section 377 is removed, you will also decriminalize anal rape of men? Please check it: no other law exists to protect men from rape.

    So, don’t get started on equality in the Indian Constitution…. there is no such thing.

    • bhagwad says:

      I’m ready to believe that our politicians and public don’t respect the Constitution. But I don’t think it’s absurd to expect that the Indian Supreme Court will forget about it! After all, don’t we learn way back in sixth standards civics class that the Supreme Court is the ultimate protector of our fundamental rights?

      But I believe the latest changes in the sexual assault bill makes it gender neutral. In any case, that’s a terrible reason to keep a crazy law on the books.

      • Abhishek says:

        Hardly! The politicians do what their votebank wants and the Supreme Court operates on a whim.

        If a couple is married for 1 day, the woman can demand a share in the man’s ancestral property. Under no circumstances can the man demand a share in the woman’s ancestral property.

        In a sane world, the Supreme Court would have struck down such a law in under 1 minute: It is in clear violation of Article 14- Right to Equality.

        Just to make it clear, I am not picking on women. I am equally shocked that the SC has nothing to say about marital rape.

        But that never happens. Because the SC operates on whims.

      • bhagwad says:

        Well to be fair, a case has to reach the SC in the first place. Plus SC judgments when they’re handed down at least have to have the impression of being reasonable when one reads the reasoning unlike politicians who needn’t justify any of their actions. In short, I expect more from the SC because that is their specific role, whereas the role of politicians is just to get elected and nothing else.

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