Former Attorney General Goolam Vahanvati’s passing away on 2 September, 2014 marks a moment of sadness for the LGBT community. Mr Vahanvati will be remembered fondly for his sensitive advocacy against Section 377 of the Indian Penal Code.
As a representative of India before the the United Nations Human Rights Council, Mr Vahanvati acknowledged that it was homophobia – not homosexuality – that was a legacy of colonialism, and suggested that Section 377, was in part, enacted to deter Europeans who “came to India to take advantage of its more liberal atmosphere with regard to different kinds of sexual conduct.”
When the first appeals were filed after the Delhi High Court’s judgment, it was Mr. Vahanvati’s statement in the Supreme Court that the Union of India was examining the issue but in the meanwhile did not want a stay of the judgment that saved the High Court’s ruling for 4 more years. Ultimately, the government took the position in the Supreme Court that ‘there was no legal error in the judgment of the Delhi High Court’ and asked that the appeals against the High Court’s judgment be dismissed.
In the history of anti-sodomy law litigation throughout the world, it was perhaps the first time that a national government had taken the line that its own law was unconstitutional.
Mr. Vahanvati presented this viewpoint before the Supreme Court with his customary skill backed up by meticulous research. Mr. Vahanvati’s written submissions on behalf of the Union of India, based on extensive research, again made the point that Section 377 was a colonial imposition and was enacted out of patently racist assumptions of ‘native’ sexual behaviour.
However, this unambiguous position of the Union of India did not convince the bench who kept pressing Mr Vanhavati as to why the Union of India had supported the retention of Section 377 in the High Court but had taken the opposite position in the Supreme Court. Mr Vahanvati replied that that the ‘government also learns and after the[Delhi High Court ]judgment there was subsequent enlightenment.’
The December 11, 2014 judgment in Suresh Kumar Koushal, upholding the constitutional validity of Section 377 triggered widespread outrage and the Union Government decided to file a review petition challenging the Supreme Court judgment. The petition was settled by Mr. Vahanvati and had 76 grounds for review.
Among the review grounds, notable for its sensitive understanding of the impact of the judgment was one which read,
“Following the High Court judgment that decriminalised adult consensual sexual acts in private, including homosexual acts, a considerable number of LGBT persons had become open about their sexual orientation and identity in their families, workplaces, educational institutions and public spaces, amongst others. All those people suddenly have become vulnerable to abuse and discrimination and require immediate relief. ”
While the Government that Mr. Vahanvati represented had clearly learned from the High Court’s judgment, the Supreme Court had not, and unfortunately the review petition was dismissed.
After the Supreme Court’s December 11 judgment, Mr Vahanvati went beyond the call of duty and did something unprecedented in the 377 case. He penned an open letter where he stated that he ‘belongs to the school of thought which believes that an Attorney General must be heard in court and not outside it’ and yet he felt he had to express his opinion on the Koushal judgment because of the ‘importance of the matter’ and because the judgment had caused ‘widespread anguish and heartache across the country’.
After reiterating the point that Section 377 – not homosexuality –was a western import he concluded with words which still remain meaningful.
‘The world has moved on. It is fast changing. Perceptions have changed. Attitudes have changed. Law does not and cannot remain static. Whenever necessary, the Supreme Court has reflected changed perceptions of the law and has struck outmoded laws down. They did so when striking down rent control laws as socially irrelevant. They also did it by breathing fresh life into Article 21, protecting life and personal liberty. They did it by consigning the archaic judgment in A K Gopalan vs State of Madras, rendered in 1950, into the dustbin of history. Unfortunately, they declined to give a similar treatment to Section 377. Therein lies the tragedy.
One hopes that the LGBT community has more such champions of empathetic reasoning as Mr. Vahanvati and the ‘colonial legacy’ is finally removed from our roster of ‘lawless laws’.
Read Vikram’s tribute here.