Remembering an ally: GE Vahanvati’s unique contribution
Former Attorney General Goolam VahanvatiтАЩs passing away on 2 September, 2014 marks a moment of sadness for the LGBT community. Mr Vahanvati will be remembered ┬аfondly for ┬аhis sensitive advocacy against ┬аSection 377┬а 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 тАУ not homosexuality тАУ that was a legacy of colonialism, and suggested that Section 377, was in part, enacted to deter Europeans who тАЬcame to India to take advantage of its more liberal atmosphere with regard to different kinds of sexual conduct.тАЭ
When the first appeals were filed after the Delhi High CourtтАЩs judgment, it was Mr. VahanvatiтАЩs 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 CourtтАЩs ruling for 4 more years. Ultimately, the government took the position in the Supreme Court that тАШthere was no legal error in the judgment of the Delhi High CourtтАЩ and asked that the appeals against the High CourtтАЩs 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. VahanvatiтАЩs 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 тАШnativeтАЩ sexual behaviour.
However, this unambiguous position of the Union of India did not convince the bench ┬аwho┬а 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┬а the тАШgovernment also learns and after the[Delhi High Court ]judgment there was subsequent enlightenment.тАЩ
The December 11, 2014 judgment in Suresh Kumar Koushal, upholding the constitutional validity of Section 377┬а 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 CourtтАЩs judgment, the Supreme Court had not, and unfortunately the review petition was dismissed.
After the Supreme CourtтАЩs December 11 judgment, Mr Vahanvati went beyond the call of duty and┬а 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 тАШimportance of the matterтАЩ and because ┬аthe judgment had caused тАШwidespread anguish and heartache across the countryтАЩ.
After reiterating the point that Section 377 тАУ not homosexuality тАУwas a western import he concluded with words which still remain meaningful.
тАШThe 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 ┬аreasoning as Mr. Vahanvati and the тАШcolonial legacyтАЩ is finally removed from our roster of┬а тАШlawless lawsтАЩ.
Read Vikram’s tribute here.
