SC hearing Day 5 – 28.02.12
The day’s hearings began with the government trying to rectify the confusion created by Additional Solicitor General (ASG) Malhotra’s unwarranted intervention. Trying to frame this as neutrally as possible, another ASG, Mohan Jain, said that the Ministries of Home, Law & Justice and Health were concerned with the judgment, but felt there was no legal error in it.
This did not go down well with the Bench which was evidently highly displeased at how the government had wasted its time due to its lack of clarity. They tore into poor Mr.Jain, questioning his standing:
Bench: “Are you party through the Govt. of India? Are you party through the Ministry of Health? In what capacity are you a part? Can you change your stand from court to court? Can pleading in the first court change in the appellate court? Under what provision can arguments in pleading be changed? You are stating things that are not part of our papers.”
Mr.Jain tried to repeat his point about the Ministries feeling the judgment had no error, but the Bench retorted: “It is not a decision by the Government. It is only a group of Ministers. If it is said by the Council of Ministers, then it is a decision of the Govt.”
Mr.Jain tried to make the point that there had been two different government viewpoints in the Delhi High Court, from the Ministries of Home and Health, but this had come in for sharp comments from the Bench then, and it did again. The Bench asked how the government could change its stand from court to court, and whether its arguments in the first court (Delhi High Court in this case) could change in the appellate court (Supreme Court)?
The Bench then pretty much ordered the government to take a final position: “We are hearing the constitutional validity of this law – ultra vires/ intra vires? It is a straight question. You file an affidavit taking your stand. It has to be an official stand. If you want to say Sec. 377 is partly/ wholly unconstitutional, say so. If you want to say that the court can say whatever it wants to say – you don’t need to say that (everyone laughs). The only question is whether 377 is valid. We will be confined to 377 and not go beyond.”
Mr.Jain tried to bring the focus on the HIV/AIDS arguments for reading down 377, on how the law made it hard to reach out to the MSM population. The Bench however was in no mood to accept just statements from the government, but wanted data, affidavits.
Bench: “The judgment was in 2009. After that f the Govt. wanted to stop the spread of AIDS, they could have educated the public or done something else about it. It wouldn’t have taken much time. It is over 2 years now….to be precise 2 years 6 months….you should have filed an affidavit. Sorry, we don’t like to work like this. You cannot have a hidden agenda. Your papers should be available to the other side also and they should be able to respond. Whatever paper you have must be filed…”
Mr.Jain, really struggling now, reiterated that the Government’s position was that there was no error in the judgment, but the Bench wanted something more precise: “Is it violative of Art. 14 [Equality before the law], 15 [Prevention of Discrimination], 19 [Freedom of Speech], 21 [Protection of life and personal liberty]?”
Mr.Jain started to refer to what the government was saying, but the Bench interrupted again: “Which Govt?”
Mr.Jain: “Union of India.”
Bench: “There are 3 Union of Indias. Which one is saying this?”
Mr.Jain: “Ministry of Law and Justice…”
Bench: “No..no which Union of India is saying this? (judges laughing). How many Union of Indias are there? 4? So out of 4 how many are part of this? I can’t see all 4 in it, so how many are part of this? I can understand Health etc…but which Union of India has argued?”
Mr Jain came out with a definite date, saying that on 28 July 2009, the Ministry of Health and Law and Justice took a joint decision, and he went on to talk about how MSM were a high risk group for HIV, how they are often married and pass on HIV to them…
Bench: “The judgment does not have anything to do with MSM, HIV – it is about adults. Art. 14, 15, 19, 21…which of these in itself address HIV?”
Mr.Jain: “There are certain high risk groups because of their risky sexual behavior like MSM, female sex workers, injecting drug users…all are at high risk of getting HIV/ AIDS…NACO says that HIV is higher amongst them. HIV amongst general population is much less. The estimated number of MSM in 2009 was 12.4 lakhs…since MSM also marry women, they pass it on to women…it is a risky behavior..also because of the hidden nature of these groups.”
But the Bench is really not interested in the HIV aspect at the moment. It asks a perfunctory question about the institutional status of NACO, but also says firmly: “We are not deciding HIV/ AIDS. We are deciding whether 377 of IPC in HC judgment is ultra vires or not.”
Clearly this is all going nowhere, so Mr.Jain says for one last time that the government of India does not oppose the judgment, and then sits down. We are now back with our opponents – next up is Mr.H.P.Sharma, counsel for B.P.Singhal, one of our most long standing opponents, who has been there since the Delhi High Court.
Mr.Sharma quickly makes clear that his argument will about what is natural and unnatural: “Under the law there is something natural and something unnatural. In different statutes these words come many times… murder is an unnatural violence and so is homicide. Natural Justice – nature requires man to speak the truth. Justice is part of nature. It is natural. Injustice is unnatural. Unnatural offence is considered unnatural in a very popular sense. Fundamental Rights (FR) cannot be stretched too far. Court has to also look at Fundamental Duties (FD) and Directive Principles (DP). If someone’s sexual orientation affects someone else’s life, then it conflicts with Fundamental Rights. What materials should the court look at to see if it is ultra vires or not? Court should look at FR, FD and DP… ”
[Side note: Fundamental Rights don’t need explanation, and most of us will be familiar with the Directive Principles of the Indian Constitution from our civics classes, but the Fundamental Duties may be less familiar. And there is good reason for this – they are in the Constitution, but are one of its more ambiguous parts. For one, they were not originally part of the Constitution but were added during the Emergency through the 42nd Amendment. After the Emergency many parts of the 42nd Amendment were changed, but the Duties were left alone since they are (a) mostly stuff everyone can agree on, and (b) non-justiciable, so are aspirations, rather than legal obligations, unless specifically made so. An example, I guess, is the duty to respect national symbols which is the reason why, in Mumbai, we have to get up for the National Anthem in theatres – but after the state government made it compulsory. The point is that nowhere in the Fundamental Duties can I see anything that would support criminalising homosexuals – in fact, some like respecting our common brotherhood, preserving our composite culture and promoting a scientific temperament would suggest the opposite. For more: Fundamental Rights, Directive Principles and Fundamental Duties of India]
Mr.Sharma isn’t just concerned with natural/unnatural, but also takes on the Right to Privacy argument. This, he says, is limited: “Right to Privacy will not be available if the act is not a lawful act – adultery, gambling etc. If a person does not commit breach of law, he can enjoy privacy. The crux of the matter is, can an illegal act be made legal if it violates Right to Privacy? Certainly not.”
Someone was bound to bring in religious texts sooner or later, and Mr.Sharma now does so, referring to the Manusmriti, the Bible and the Koran. This gets a reaction from the Bench: “Were these – Manusmriti, the Bible and the Koran – also placed before the HC?”
Mr.Sharma replies no, and wants to go on to talk about society, but the Bench isn’t leaving him: “Who has authored Manusmriti?”
Mr.Sharma: “This is the original text. I have downloaded it from the internet. Anything downloaded from the internet is admissible as evidence…”
Bench: “So this is by which author? If the original is available with you, please give, we will consider…(says with a smile).”
Mr.Sharma just keeps talking, about Gandhi talking about unnatural vice in 1929. I guess he hasn’t read the Lelyveld book! More seriously, the problem with quoting Gandhi as disapproving of homosexuality is that he didn’t much approve of heterosexuality either. The Bench makes a similar point by noting that Gandhi disapproved of many things, including alcohol, but Mr.Sharma keeps going, not listening the the Bench, until finally the Bench remarks: “You are paid to appear in court…are you also paid to hear?”
Mr.Sharma ploughs on regardless: “There is something called unnatural and immoral. Irrational is immoral and therefore illogical. Society is ruled by logic. Society is ruled by logic. It cannot allow perverted act of sex between 2 parties – this particular kind of sex is perverted sex. This is like an academic exercise where we are arguing the validity of a small part and completely ignoring certain other important aspects…” (Finally Mr.Sharma is halted by the lunch break is called and the Bench warns him and all the other petitioners that they will only get half an hour to argue in the afternoon.)
After lunch, knowing he doesn’t have much time, Mr.Sharma crams together a whole bunch of arguments: “There is nothing like sexual minority under the constitution. On the mere apprehension that rights can be violated, the court cannot be moved… Incest marriage is also carried out with consent, but it is unnatural and so criminalised… Just saying that the police have special powers because of 377 is not right. Under IPC unnatural is not only in 377. It is also in Sec 100 (fourthly) where it talks about unnatural lust. In Sec 372, illicit intercourse is also included. Law has taken care of what is natural and what is unnatural…what a man of ordinary prudence can do and cannot do.”
Sticking to their time, Mr.Sharma is asked to finish and then Mr.Praveen Agarwal, the counsel for Suresh Koushal is called. Since he represents the first person to file an appeal in the Supreme Court he had been the first counsel called on Day One, but he seemed so ill-prepared then that the Bench told him to prepare his arguments and speak later, which he now does. And he begins by trying to be clever and asks what locus standi (what involvement or right to be involved) Naz had to file the case, since it was a trust and only an individual could…. but he’s cut short by the Bench: “Issue of locus should have been examined in the HC…not here.”
(In fact, as the Bench may be aware, this issue of locus was dealt with years back when an earlier Bench of the Delhi High Court threw out the case on this matter of locus standi, at which point we had appealed it to the Supreme Court on the narrow issue of whether an organisation like Naz could have locus standi in a matter of public importance like this and the SC then had agreed and sent the case back to the Delhi High Court where, eventually, we got our great verdict. So in a way this case had already been in the SC once, even if only on a technical point of law).
Thwarted on that, Mr.Agarwal comes down to regular arguments and it is the ‘reasonable restrictions card that he is playing: “All Fundamental Rights operate in a square of reasonable restrictions. There is censorship in case of Freedom of Speech and Expression. Playing something at a high volume at night might trouble another person, so a restriction on that is within the purview of reasonable restrictions. What is covered by 377 is a social evil, therefore it can be curbed by reasonable restriction. High percentage of AIDS amongst homosexuals shows that it is a social evil…and so the restriction on it is reasonable… What is morality? In Bachhan Singh v State of Punjab, the court talks about prevailing standards of human decency…”
Bench: “Morality has different dimensions, different meanings. Even brothers living in the same house may have different standards of morality…Perception of morality pertaining to an act depends on the kind of society…what wasn’t moral before, maybe moral today. Perceptions are fast changing. Purdah system is moral in certain communities, and moral in some…even among certain Hindu communities…like in Rajasthan… there is the system of ghunghat Some will say that it is part of culture, some people will say why can’t those living in ghunghat have their basic rights?”
Mr.Agarwal, perhaps seeing the ghunghat as a neat way to drive a difference between the morality of ‘real India’ as opposed to the depraved cities, suggests that the court will not just consider morality in the metros, but the whole of India. The Bench, however, is discouraging: “Morality differs from person to person…profession to profession…court is not here to strike down a provision. There is a lot of misconception even among learned people about the role of the SC…we can only approve or disapprove the position taken by the HC…”
Professor Ruth Vanita has noted in these lists how the discussion only seems to have focused on queer men, not women and for a (very brief) moment the discussion opens up. Mr.Agarwal notes that 377 does not create distinction in gender and that the section says “whoever “so it can be male, female, all…”
The Bench: “We are asking for assistance to know if it talks of any class of persons? Does it say anything about the offenders gender? What is against the order of nature?”
Mr.Agarwal tries to answer by using the Bench’s own example of surrogate mothers as something that might be natural, but against the order of nature, but I think that example was used to suggest how things were changing, and the Bench cautions him: “Don’t go by our observations…You don’t know where you go…(everyone laughs). Don’t say what the media reports say we have said…”
Mr.Agarwal: “Even if a man is having sex with a woman, 377 may be attracted…it includes whatever is commonly accepted by society as going against the order of nature…”
The Bench: “Many acts natural for us maybe unnatural for others – other communities, countries, religions…but it may not be against the order of nature…”
The Bench: “On the issue of consumption of liquor, for eg, people’s opinion will be divided…if you have statistics from a scientific survey…you can use it to assist us…or else leave it…we have asked Malhotra how many HIV+ people are identified as gays, homosexuals, MSM…NACO has provided some statistics….”
Mr.Agarwal tries suggesting that 377 prevents the spread of AIDS, and that if 377 goes then who knows what can go tomorrow: “If 377 is struck down…Immoral Traffic Prevention Act (ITPA) may also be struck down…privacy will also enter there…today it is 377… tomorrow it will be ITPA…the concept of morality has to go then…”
But the Bench, having told Mr.Jain that they don’t want unsupported arguments on HIV, doesn’t give Mr.Agarwal much room here either, and he’s asked to finish. With just a few minutes to go, the next to be called is Mr.Sushil Kuman Jain, the counsel for Krantikari Manuvadi Morcha (This organisation is best known for putting Dara Singh, the man who is in jail in Orissa for allegedly burning the Australian missionary Graham Staines and his two small kids to death, up for election as their candidate in different elections, most recently in UP.)
Mr.Jain has just enough time to suggest that this case shouldn’t be here at all: “It is for the Parliament to decide what is moral and what is immoral. Consent cannot be incorporated in a section when it is not provided there…wherever the consent is valid, the statute includes it. Some acts the society takes care of and penalizes it – individuals not living within the discipline of the society is to be punished. To check anarchy, society takes care of a situation.”
Time is up, and the session is called to a close, but not before the Bench directs the ASG to file an affidavit clarifying the Ministries position in 3 days.