A Word on the Verdict regarding Section 377 In light of the present situation of debate over Section 377 IPC,

I feel it is necessary for me to contribute to the useful expense of our energy in this debate by attempting to define the areas that need our observation. In this, there is my interest to drive the debate at least to the necessary areas of concern and save my peers from expounding their energy on arguments that may have already been contested or that appeal no more. The verdict pronounced by Justice G.S.Singhvi has merely pronounced on the validity of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and he claims that the section does not suffer from any constitutional infirmity. This has to be seen in the light of all arguments forwarded by respondents in the High Court who tried to attack the constitutionality of the law. Anyone wishing to know these arguments can read through the first part of the verdict. Hence, the verdict ends with the suggestion that the legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same. It will be a clich if I speak of there being the impossibility of any final decision in the hands of the legislature, which Mr.Singhvi shows as a legitimate means as regards the severability or reading down of the law. So, our hopes lie in trying to show the law to be unconstitutional on grounds apart from the ones that were already presented and rejected by the verdict. I am not equipped with legal expertise, but I am surely free to state what I have been able to understand from the verdict. I am only referring below to those arguments that I am uncomfortable with. Firstly, the main points that Mr.Singhvi underlines are regarding a) severability of an invalid portion in a law, b) classification in a law c) definition of terms in a law d) law in relation to rights e) validity of law vis--vis the abuse of it Of all these, the one that strikes me as unsettled and also more crucial is the definition of terms in a law. Mr.Singhvi is kind enough himself to point all instances where the ambiguity or arbitrariness of terms in a law can lend the law invalid. This point is also connected with the criteria for classification used in the law. Section 377 IPC has in its ambit non-procreative to imitative to all forms of sexual perversity and it applies to all regardless of gender or sexual orientation, etc. Hence, on the face of it, the law makes only one classification of natural acts as against unnatural acts. But as empirical evidence tells us, this criteria difference overlaps with difference in sexual orientation. We will have to accept that classification is not unconstitutional, as far as it is in the interest of the people. This is exactly the point that Mr.Singhvi upholds and given all circumstances where terms can be arbitrary, he is only convinced that in this case, it is not. I believe this is the point where we are to start with. Mr.Singhvi admits the ambiguity of the term but is convinced that the classification is valid. It is valid if the tems are taken neutrally. The problem however is in the very understanding of nature. Mr.Singhvi provides the definitions from Black Laws dictionary: Nature-fundamental quality that distinguishes one thing from another, the essence of something, something pure or true vis--vis artificial or contrived, the basic instincts or impulses of someone or something It is interesting to note that these adequately describe sexuality as it stands today with reference

to the work of American Psychological Association, and yet Mr.Singhvi is unable to see this. A close study of Mr.Singhvis use of the term natural reveals that he, more often than not, makes a stipulative definition instead of a reportive one, in loading the term natural with harmless and unnatural with harmful. He has provided cases (see point 38 in the verdict) where unnatural acts have been detrimental to the bodily integrity of an individual. Here, at least one thing is clear, that the act is seen by the Court as one affecting the human body and not an act which is an offence against morals, thereby also ruling out any argument that may come from the desk of any religious interest group. This is where perhaps it will be more plausible to bring into light the methods of safe sex. Here, I would also like to draw attention towards argument of the high risk factor in MSM. Although Mr.Singhvi is right in admitting that it is no sign of discriminatory treatment, the argument doesnt also show how MSM in particular is a high risk factor because of the supposed unnaturalness of the act, and the rise in HIV/AIDs in this part of the population happened regardless of the law. It is now necessary to argue over the supposed inherent harm of the act and the actual harm it can cause. It goes without saying that all sexual acts carried out without safe methods are harmful. Rather, there is doubt over the harmfulness of some imitative sexual acts over the ones that are deemed natural and harmless. What we need to prove is the nullity of any exception in sexual act that has not been read through in the light of new evidence. But it is wise to not overstate the word new, for part of this verdict drifts away in this tone of how the new can only be informed by the legislature, or that it is incompetent to transplant Western experience in our country (which is the thinnest of arguments in my sight, along with the one where he says the numerical scarcity of cases of offence is lending all acts of LGBT abuse baseless). My limited insight only brings me to the point that the law itself is in the wrong context as per its definition and doesnt make it explicit how unnatural carnal intercourse is fundamentally detrimental to the integrity of the body (the law appears at the end of chapter XVI). We do not ask for the definition of the term in terms of the kinds of acts that it may encompass but we challenge the rationale behind the use of the criteria itself. And Mr.Singhvis examples do not establish the fundamental harm, if any, of unnatural sexual acts. The bottom line is that the classification of natural and unnatural hides a fallacy of word definition as per its defining characteristic. The token of emphatic disapproval by the society in the case of murder is completely different from that of a disapproval that may be expressed on this matter, and it was wrong for Mr.Singhvi to try to draw any line between the two. Thus, my humble point is made on the grounds that the ambiguity and imperfection of this law is far too much to allow it in the book of Constitution. I welcome all opinions with an open mind.