MAYUR SURESH finds the Supreme Court guilty of contempt (of citizens)
Contempt: – The word ‘contempt’ comes from the Latin word “contemptus” and much like its modern counterpart, is the feeling that a person or a thing is worthless or deserving scorn.
Contempt is a feeling that is often felt by Lesbian, gay, bisexual and transgender people in India. It’s been meted out to LGBT people equally by the British who aimed to civilise us, and those today who seek to ‘preserve our culture’. An 1838 report on the Draft Penal Code called homosexual acts a “revolting subject” and said that the “frequency” of homosexuality in India “remained a stain on this land.” In 1934, the High Court of Sindh called a man who had consensual sex with another man “a despicable specimen of humanity”. Not to be left behind, those appellants who approached the Supreme Court reserved the choicest of contemptuous words for LGBT people in India: “disgusting”, “filthy”, “delinquents”.
This all changed with the Delhi High Court’s decision in 2009 decriminalising same-sex sexual acts between consenting adults. For the first time in the discourse of the State, queer people were no longer people to be despised or looked down upon with scorn. Instead queer people in India were spoken of in terms of ‘dignity’, ‘love’, and ‘respect’. In doing so, the High Court drew a picture of what a society based on dignity and respect may look like:
The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants” or “different” are not on that score excluded or ostracised. Where society can display inclusiveness and understanding such persons can be assured of a life of dignity and non-discrimination… Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is anti-thesis of equality and that it is the recognition of equality which will foster the dignity of every individual.
The Supreme Court judgment authored by Justice Singhvi on Section 377 has reinstated a regime of disgust and contempt towards LGBT people in India. By describing LGBT people as a “miniscule minority” who only bore “so-called rights” the bench that delivered the Naz judgment could barely mask its disgust for LGBT people. The judgment has taken the law back to a pre-constitutional times. Though, to be fair, this is not the only occasion when the Supreme Court has set the calendar back or has looked down with contempt on those who approach it.
In 1979 the Supreme Court exhibited absolute disdain for any idea of bodily integrity and acquitted two policemen of raping Mathura, a tribal girl. They were acquitted on the ground she was “habituated to sex” and reasoned that she must have had consensual sex simultaneously with two police officers in the latrine in the police station – even while her brother and her employer waited outside. Judges of the Supreme Court have cast slum dwellers as “pick pockets” and have referred to tribals as “grass eating”.
More recently, another judgment authored by Justice Singhvi pilloried the ideas of the right to life and equal protection of the laws when it derisively dismissed petitions asking for the commutation of death sentences, accusing the petitioners of raising the “bogey of human rights”. In 1976, the Supreme Court delivered its infamous ADM Jabalpur judgment where it upheld detention-without-trial during the Emergency. In this judgment, the people who approached the court, seeking to exercise their Right to Life and Liberty guaranteed by Article 21 were described as existential threats to the state. The Supreme Court upheld the argument the State during a period of Emergency could deprive a person of his liberty without giving any reasons. In this telling by the Supreme Court, rights became a play-thing of the State, to be granted and revoked at will.
Advisedly, the Supreme Court has sought to disavow this judgment. In a rare confessional moment, a three-judge bench comprising of Justice Singhvi sought to erase this contempt it exhibited towards citizens during the Emergency. Referring to ADM Jabalpur it stated “The instances of this Court’s judgment violating the human rights of the citizens may be extremely rare but it cannot be said that such a situation can never happen.”
For many lawyers and journalists, the word ‘contempt’ immediately brings to mind the quaint power exercised by the higher judiciary in India – the Contempt of Court. By this power, courts can punish people whose acts “scandalize” it or “lower its authority”. To bring the judiciary into contempt is to express the feeling that the judiciary is worthless or deserving of scorn. But after yesterday’s judgment, and with the Court’s confession that it too can violate fundamental rights, perhaps we can dare add a phrase to express the scorn that courts have at times towards the people that make fundamental rights claims. This phrase ought to have entered our vocabulary long ago: Contempt of Citizens.