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Hearing of Day 3 (16-Feb-2012) in the 377 Case: Updated by Vikram Doctor :
Before starting today’s summarised report, a couple of comments based on what I understand from the reports. First, the judges are starting to enjoy the case. OK, perhaps that’s not a respectful way of putting it, but there’s definitely a sense from today’s report that they are getting interested in the issue and also intrigued by some of the more bizarre aspects of s.377.
And there are bizarre aspects in plenty. I think a lot of today’s arguments dealt with the fact that there are really two aspects to 377 – the law as it is stated in the Indian Penal Code and the law as it has been interpreted by judges over the years. In the second aspect, across a series of cases, the basic wording of the IPC has been interpreted in ever increasing ways to criminalise every type of non-procreative sex including, and this actually comes up today, masturbation (though the Bench doesn’t use that term).
There is also this issue of penetration which features a lot today. S.377 doesn’t just include the basic words criminalising “carnal intercourse against the order of nature” (words that feature a lot in court today), it also adds a bit of explanation which says “Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.” It is this issue of penetration that really gets the weirdness going since it includes easily the most memorable case in the whole history of 377, possibly the whole history of the IPC – the man who had sex with a bullock’s nostril.
For those who want to know more about this and other cases, and the way the law has been extended through interpretations, this paper explains the issue:
One would have to be truly weird not to appreciate the weirdness of a lot of this, and the Bench clearly does find it all interesting. It probably helps make the post lunch session, which is when the case is being heard (and probably will be heard on most days) easier to get through. But while its good that the case gets heard, no matter how, there is something worrying about all this. S.377 is not just about weird or kinky sexual practices, but about basic human lives and human dignity and too much focus on the oddball stuff undermines that.
Today’s arguments involve legal hairsplitting and parsing of words, which is fine, it’s what cases are about. But one thrust of the arguments could be going in less questionable territory, again due to the focus on the sexual acts. The Bench seems to be examining whether homosexuality is about sex or a class of persons, and one way this could go is to say that 377 just deals with the sex, not the sexuality so where’s the harm in that. This is like the argument `enlightened’ religious homophobes make: we’re fine with gay people, just not gay sex, so what’s the harm in just criminalising gay sex – nice and sensible gay people just won’t do it.
But you can’t separate gay people and gay sex like that – sexuality can hardly engage in some sterile limbo when sex is criminalised. And it is all too easy for people less adept at legal niceties to conclude that because the sex is criminal so is the sexuality. But now I’m getting ahead of myself and doing what I said shouldn’t be done, trying to second guess what the Bench is thinking. Going just by what was said in court today the Bench is doing what it should, examining all sides of the issue, and if its finding some of this unexpectedly entertaining, well, that at least ensures the case continues to get heard.
Notes for 16.02.12, day three of Supreme Court hearings on appeals against Naz Foundation case. The Bench consists of Justices Singhvi and Mukhopadhyay
Today’s proceedings took off from where they ended yesterday with Mr.Sharan, the counsel for the Delhi Child Welfare Committee, continuing his examination of the wording of Section377.
Mr. Sharan, arguing for the Delhi Child Welfare Committee, noted the difference in wording in section 375 of the IPC (which defines rape) where the phrase used is `sexual intercourse’, while in section 377, the expression is `carnal intercourse against the order of nature’. So what was natural intercourse then? The answer is one we’re all familiar with: natural intercourse was sex that has the possibility of conception. If you can have babies its OK, if you can’t, its not.
While this argument is familiar, the problems with it are also familiar and the Bench will bring the up soon. Perhaps to forestall this, Mr.Sharan went on a tangent to note the official source of this argument in Indian legal history, a case called Khanu versus Emperor. This involved a minor who was forced to perform oral sex on a man, and it’s also notable for extending 377 to cover oral as well as anal sex.
This seems to be what Mr.Sharan is thinking about when he gets all physical (so to speak). He quotes from Khanu to say that intercourse refers to sexual relations between persons of different sexes where the `visiting member’ has to be enveloped by the recipient organization (use your imagination here!). The reason this was criminalised in a case like Khanu, he said, was that it could lead to unmanliness and to persons not being useful in society. And remembering that he’s representing a child rights group, he points out that young people might be indoctrinated into this offence.
(Maybe I’m being unfair to Mr.Sharan and his client, but I find it interesting that the harm they see here is all about `unmanliness’ and being `useful’ to society, presumably by producing multiple children. But surely what is really wrong with a case like Khanu is the fact that a minor is forced into sexual acts? The Naz judgment very clearly leaves the criminalisation of that alone, but that’s not enough for the Delhi Child Welfare Committee. For them issues like manliness seem to count as part of welfare).
The Bench then asked Mr Sharan if there was a difference between `unnatural sex’ and `abnormal sex’. Now the fun starts, since Mr.Sharan takes this as a cue to bring out the bizarre stuff. Exhibit one is the case heard in Lahore in 1934 – this is the man caught having sex with a bullock through the nose. Bullock nostril sex was clearly never imagined by Lord Macauley when he drafted the Indian Penal Code, but the court at that time said that it could be penalised under 377 as well.
Mr.Sharan is now on a roll, and he brings up the penetration factor. The points to a Gujarat High Court case where an attempt was made to put a male organ in the mouth of the boy. It was argued (presumably by the possessor of the male organ) that there was no penetration so s.377 can’t apply. The court then said that just the attempt was against the order of nature (and further added that semen didn’t need to come for it to count as an offence).
The Bench, perhaps feeling it was best to come back to the issue of wording, noted that the meaning of `order of nature’ varied between judgments, but Mr.Sharan was not having this. “Order of nature’ means sex for procreation, he said. The Bench and Mr.Sharan then got into a wrangle about whether he should be using the word `sexual’ when the wording was `carnal’ and whether all abnormal acts were unnatural. The Bench seemed to feel that instead of blanket statements, each case should be examined for the facts.
Mr.Sharan decided to stick to the sex. He quoted a Madras High Court judgment that defined sodomy as “non-coital carnal copulation with the same sex or different sex and included anal sex, oral sex, tribadism, sadism, madochism, fetishism and exhibitionism.” You may need to look at the dictionary to understand all that, but it can be simplified as all being ways for at least one person to gain pleasure. Or, as Mr.Sharan put it, quoting a 1969 case, carnal intercourse was `the temporary visitation of an organization, where the primary object was to obtain euphoria, and where the visiting member was partially enveloped by the organization.’
Just to make things clear for the Bench, whether they wanted it or not, Mr.Sharan explained that those words came from a case where the male organ was inserted between the other person’s thighs – no penetration but it was construed as an unnatural offence. And to make sure that absolutely no one could get away with anything, he added that section 377 covered situations where the male organ was held tight in the hand, imitating an orifice. (`Imitating an orifice’ seems to be the classier term for `choking the chicken…”), and it also applied to man-man, woman-woman and man/woman-animal.
Perhaps as a break from this, or to cool Mr.Sharan down, the Bench then brought up the ancient Indian culture argument. They pointed out that the erotic carvings in Khahuraho predate s.377, but Mr.Sharan said flatly that paintings and sculptures did not determine what was socially accepted. The Bench didn’t respond to this bit of art criticism, but mentioned the “times-they-are-a’changing”arg
There followed some back and forth between the Bench and the counsel about what constituted penetration. For example, The Bench asked “if a gynaecologist inserts a hand inside to find out if a baby is alright, is it against the `order of nature’?” Mr.Sharan, who’s no fool, and knows when to side step an argument, simply said “There is no element of carnal, so no sexual satisfaction.” There was a lot more of this which was rather confusing, but perhaps the way to look at it is that the judges are just trying to see the limits of the arguments.
The Bench then decided to move away from the sex/carnal intercourse part for a while to look at the definition of gay. The Bench asked if homosexuals constituted a class. The Bench asked what the definition of bisexual was, and on being told by Mr.Sharan that they enjoyed both homo and heterosexual sex, it suggested that they were not a class.
But this line of thinking was, perhaps happily, not followed as the Bench abruptly shifted to the problems with the procreation argument. The Bench said that if Mr.Sharan was sticking to the procreation = natural argument then many husbands and wives could be prosecuted under 377. An added complexity was posed by surrogacy where, as the Bench pointed out, procreation was happening without penetration, so where was the need to make so much of penetrative sex for procreation.
Mr.Sharan tried to get away from this by saying that surrogacy did not involve carnal intercourse so was quite irrelevant here, but the Bench had another angle to this. The Bench said that 20-30 years ago surrogacy would have been considered to be against the order of nature. “Today it is a thriving business”. The Bench said that homosexuality may or may not be abnormal, but added that “We can’t say, only persons with experience could say so” (laughter in court). Basically the judges asked for more explanation on issues involving `natural’, `against the order of nature’ and `abnormal’.
Mr Sharan then seems to have decided to obfuscate and it certainly worked since I can make no sense of this part and quite a bit of what follows: “Where is the question of curtaining 377 if it was not within natural intercourse. There is no need to challenge the law. Anybody prosecuted under 377 could defend himself. If the prayer is that 377 to the extent that it applied to consenting adults is illegal, it is admitted by writ petitioners that it is against the order of nature.” The Bench: “Why do you talk of sexual activities. `natural’, , `unnatural’, `normal’, `abnormal’ have nothing to do with a class of people?”
The Bench then drew attention back to the fact that this law dated back to 1860 so and would what is unnatural be the same even now? Mr.Sharan was dogmatic: “The sun rises in the east and will be in the east. The law of nature does not change”. The Bench: “Who says so?” Mr.Sharan: “My Lord, I Say so”
(Loud Laughter in court). The Bench: “We appreciate that at 4 pm you made us laugh”. Mr.Sharan: “It can’t be a serious discussion all the time. We need some interludes like this.”
Time was almost up, but before that the Bench delivered this statement which is confusing to say the least: “If the act of intercourse of male and male or female and female and other acts which do not amount to carnal intercourse against the order of nature, then section 377 is not attracted and there would be no occasion for us to examine the constitutionality of the provision under sections 14, 19 or 21.” Make of that what you will.
The Bench said they would continue the next day, but one of the really important lawyers, Mr. Ashok Desai said the next working day was Wednesday. The Bench said that what was meant was Wednesday, adding that: “When we start hearing such a matter we forget these things.” The Bench concluded by asking Mr.Sharan to submit a note on the subjects discussed.