Crimes of Unreason: Danish Sheikh

A post on the cowardly judgment of the Supreme Court by DANISH SHEIKH. I term it a cowardly decision because if it had said that we are homophobic then it would at least have been admirable for its honesty if not for its belief. It instead chooses to mask its homophobia with crimes of unreason

Now you’re legal – Now you’re not!

With the ease of a particularly sadistic magic trick, a 98 page document has sent millions of LGBT individuals time-warping back into pre-2009 criminality. If there were any constitutional justifications for this act, they are not to be found lurking in the pages of this shockingly poorly reasoned decision. The Supreme Court has taken a chainsaw to one of the most beloved court decisions of our time, and surgically extracted everything that made it such an important verdict. Besides, of course, that little side business of equal-moral-citizenship granting. A broader walkthrough the shoddiness of the judgment can be found  here, (http://kafila.org/2013/12/12/we-dissent-siddharth-narrain/) I’m presently looking at some of the more egregious of its violations.

One of the most powerful components of Naz Foundation v. NCT of Delhi was its generous reading of Article 15 of the Indian Constitution. In reaching the conclusion that sex included sexual orientation as a prohibited ground of discrimination, the Court paved the way for a reading of the Article that could encompass analogous grounds of discrimination and one that could also hold private parties accountable for discrimination. Equality jurisprudence was thrumming with exciting new possibilities that would allow other marginalized groups to benefit from the crack left open by the Delhi High Court.

In one fell swoop, the Supreme Court slammed the door shut on the magical possibilities of the decision – by deciding to not even give them a mention. That’s right, one of the core grounds of a landmark judgment that decriminalized homosexuality is pretty much ignored by the decision that overturns it, like that embarrassing house guest who just won’t shut up.

But hold on, there is this one mention of Article 15 in the judgment. It’s just so minor and happens in constructing such an outrageously illogical argument that it’s easy to miss.  I refer to the point where the Court decides to offer Article 14 at the altar of reason. The bizarreness of how the Court constructs this argument is best appreciated by a step by step breakdown:

So, Step 1: Our judges analyze the line of case law on Section 377 and conclude that no uniform test can be culled out to classify acts constituting carnal intercourse against the order of nature. This is important. They also note that the cases that usually arise in prosecutions under the section involve instance of non-consensual sex. They are apprehensive about courts prosecuting consenting adults under the section, but of course that doesn’t stop them from stating that 377 would apply irrespective of age and consent and for that matter, identity or orientation.

Step 2: They invoke Article 14 jurisprudence leading up to the classification test: for a classification to pass constitutional muster, it must be made on intelligible differentia with a rational relation to the object of the Act.

Step 3: Next, they hold that Section 377 does create a classification: one between carnal intercourse ordinarily and carnal intercourse against the order of nature. Remember how they stated that no uniform test could actually be culled out to classify these acts? Well, as per the logic of the Supreme Court,  the impossibility of being able to create a classification still allows you to make a valid classification.  Constitutional Law 101, didn’t you know?

Step 4: Further, as the test states, this classification must have a rational relation to the object of the Act. The Court decides to trail off at this point though, apparently just proving one half of the standard test for testing constitutional equality is enough. Without much further ado they state: the High Court was not right in declaring 377 ultra vires 14 and 15.

Step 5: Oh look they finally mentioned Article 15, right there!  That’s all you’re going to see of it here.

Step 6: Perhaps realizing that they haven’t been able to justify the equality argument on the classification test, they consider the other classic test under Article 14: that vagueness and arbitrariness may render a provision unconstitutional. This is crucial because otherwise a judge prosecuting a  matter may have unfettered discretion. They resolve this important point in the next sentence: “however, while analyzing a provision, the vagaries of language must be borne in mind and prior application of the law must be considered.” This is their fig leaf to the millions of individuals rendered criminal under this judgment. That if they are at some point dragged before a magistrate, the magistrate must bear in mind the prior application of the law (which, nevermind, HAS been used against consenting adults before) and the vagaries of language and hopefully allow these crazy kids to run off into the sunset.

There are other massive crimes against logic and reasoning here, of course. Witness the rise of a constitutional numerical equality test! (“in  last more than 150 years less than 200 persons have been prosecuted ….. for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires”). Marvel if you will at the causal evisceration of the right to health argument, the genesis of the initial claim! Wonder at the newfound respect for the government’s legislative authority, never mind the fact that the government itself submitted affidavits that supported decriminalization!

And if you’re all done with that, go back to the start where I mention that this judgment sends individuals back to a state of pre-2009 criminality.

Well, I was wrong.

See, before July 2, 2009, the only way of being, the only idea of existence that an LGBT individual had in the country was based on the criminal status that 377 accorded. That’s what we were born into. Then Naz happened and the limits of what were possible fell away. Outside the shadow of criminality, we could start talking a little louder, dreaming a little bigger. For four years, so many of us have cherished this idea of equal moral citizenship. And now it’s gone, a legally recognized right has been snatched away, for reasons that two Supreme Court judges have been unable to articulate – because the adequate reasons do not exist.

10 thoughts on “Crimes of Unreason: Danish Sheikh”

  1. Very well analyzed yet Danish Sheikh failed to note how this section is in fact so regressive that it criminalizes sexual intercourse non-procreative in nature i.e., for eg. protected sex.
    Also, the section doesn’t have any effect on female to female sexual intercourse with or without consent and cunnilingus.

    Hence, it effects each individual and not just those belonging to this minority group.

  2. I think it’s more than arguable that the Delhi HC’s “sexual orientation” point stands. The Court does not overrule it expressly, and because it argues that 15 doesn’t even apply, the question of whether “sex” includes “sexual orientation” is not necessary to the judgment. Consequently, that part has not, indeed, been overruled.

    1. Hey Gautam, I wouldn’t quibble with your point since it’s certainly an interpretation that I would support over my own, though I’d only imagine that the survival of the doctrine following an overruling of the judgment itself seems unlikely given the way our Courts usually handle precedent. Can’t really think of any examples to the contrary, perhaps T. Sareetha v. Venkatasubbaiah but I think even that may be stretching it. But like I said, would love to have myself proved wrong.

  3. Nice article a question here:,Couldnt the SC would have taken the easy way out and ruled on standing that Koushal didnt have standing remember Hollingsworth v Perry.
    The whole judgement is a joke and this should be an embarrassment to the SC.This was exactly the kind of case which BR Ambedkar envisioned SC to decide, and they decided to abdicate without any application of mind to the matter.
    Another question is shouldnt this have gone automatically to the full bench of SC or at least 5 judges?And if the review/Curative petition is accepted ,can the bench vacate this order before issuing a ruling?
    The more you read the judgement the more you cringe and I cringed even more when Manu Singhvi and Majeed Memon aid that majority should be comfortable with gay rights before they are passed non NDTV yesterday.

    1. Hey Ameya, to answer the first part of your question, they absolutely could have, and it was infact an argument that was placed before them. They were pretty dismissive of it at the hearings however, and if I remember correctly, they did a people-in-glass-houses argument back at us, stating that the Delhi High Court had initially dismissed us on standing too. Of course, the two instance would occupy different levels of significance: one involved approaching a court for a constitutional remedy under the writ jurisdiction, the other was an appeal filed by a non-state party.

      As to the second part, all I can say is that ideally, yes, a matter of substantial constitutional interpretation as this clearly is should have been placed before a 5 judge bench.

  4. we have definately gone back in time with this verdict.cant imagine that the sc which has ammended the hindu marriage act 1955 and other suitable ammenments and has been the epitome of reason can come out with this verdict.It is absolutely shocking.And the worst of it that they have send it back to the parliament for better action.

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