India: gay sex ban not “discriminatory”, Supreme Court says

By J.C. von Krempach, J.D. | December 11, 2013

A world-wide outburst of indignation among gay-rights activists and mainstream media has been provoked by the Supreme Court of India’s decision to overturn a decision of the Delhi High Court of 2009, in which the latter had held the prohibition of homosexual intercourse in Sec. 377 of the Indian Penal Code to be unconstitutional.

The storm-troopers of political correctness, beginning with the BBC, but not ending with Amnesty International, are in fury. But have they actually read the judgment? For the convenience of our readers I attach a link to the decision, so that everybody may read it and draw his own conclusions. It is 93 pages long and soundly reasoned – so maybe it would be worthwhile to read it before making angry, and maybe rather unfounded, comments.

From my point of view, the following points deserve attention:

  • First, the Supreme Court does not say that there is any obligation for the legislator to maintain Sec. 377 in force. It only says that the provision is not in contradiction with the Constitution. The legislator therefore possesses a margin of discretion whether or not to repeal it. The provision could therefore be repealed if there is a legislative majority for such a step.
  • Secondly, the Supreme Court finds that the impugned provision is as such not discriminatory: “Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.” (see § 38 of the decision)
  • Thirdly, the Supreme Court does not even exclude that the application of the provision might lead, at least in some cases, to discriminations or unjustifiable harassment of homosexuals. What it does say is that such discrimination and harassment must be proven by whoever makes such allegations. This was not the case here. As the Court points out, the complainant (an NGO advocating “gay rights”) “had not laid foundation to support its challenge”. The petition “was singularly laconic inasmuch as … it miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them”. (cf. §39)

In my opinion, this is a sober and well-reasoned approach towards “discrimination”, which other law courts around the world could learn from. Without making many words, it dismisses the fallacy of saying that the heterosexual and the homosexual act are “equal” und must therefore be treated equally. By consequence, it requires petitioners to bases allegations of discrimination” on something else than the mere fact that homosexual acts are not treated in the same way as heterosexual acts. This does not mean that there is no possibility for them to bring forward charges of “discrimination”, but it does mean that such charges must be duly substantiated.

Share on Facebook
Share on Twitter