IPC 377 : Supreme Court & the Queer Future (Day 4)

*Editors’s Note : As reported by Vikram Doctor*

This is the report for day four of the hearings on the 377 case in the Supreme Court. I think our sources have done a brilliant job, taking down a long day’s arguments in such detail and taking pains to give us the actual voice of what was being said. There are some legal terms and references, but these don’t come in the way of understanding the larger text, so I am sending it on virtually unchanged.

The judges asked a lot of questions today – they themselves, at the end, indicate that they will ask fewer questions the next day. It is easy, while reading this, to feel disheartened by the tone they take, but I think the way to look at it is that the judges are feeling their way in this case and are indicating what areas they find interesting.

The judges say that they hope that they will get answers to their question – well-researched and rigorous arguments. In the next few hearing dates we will see if our opponents can provide these.

Naz Foundation Case- Final Arguments – Supreme Court
22 February 2012

Mr.Sharan, representing the Delhi Commission for the Protection of Child Rights continued his arguments before the Supreme Court bench of Justices Singhvi and Mukopadhyay.

Mr. Sharan submitted a list of propositions to the court. In these propositions he said, “I will show how each of the findings of the High Court are against the law and that the reasoning of the High Court will not withstand the scrutiny of the law that has been held by Your Lordships”.

Mr. Sharan went on to read from the Delhi High Court’s judgment in the Naz case. He read from para 98 (which referred to Art 14 of the Constitution), para 99 (refers to Art 15 of the Constitution). He said that public morality was important in framing the law as it is included as an exception in Articles 19 and 25(1)

Mr. Sharan argued that there were a series of cases that held that the right to privacy was not an absolute right, and did not confer immunity to crimes committed by consenting adults in private.

Mr. Sharan argues that the High Court’s findings on Article 14 were erroneous as section 377 did not create a class and applied to men and women if they indulged in carnal intercourse against the order of nature. He said that what was criminalized was the act and not the person himself.

Mr. Sharan argued that if the High Court decision was taken to its logical conclusion, any provision could be declared to be violative of Art 14, for instance, dowry seekers could claim they are being discriminated against and in an extreme case murderers could claim that are being discriminated against.

Mr. Sharan said that Art 15 prohibited discrimination on the basis of gender and not on the basis of sexual orientation – He referred to DD Basu’s commentary on the Constitution.

Mr. Sharan said that the High Court relied on foreign decisions, articles and foreign law to hold that 377 was not valid. He said that there was a vast cultural difference when it came to Indian society . “I have grave doubts about transplanting Western jurisprudence into our country”, he said.

The Bench, referring to the journalists seated behind said, “There are some youngsters behind taking notes of your arguments. Please give a copy to them. Sometimes their reporting results in comedy”.

Mr. Sharan argued that the Delhi High Court relied heavily on a South African case but the South African situation was different since their constitution expressly prohibited discrimination based on sexual orientation.

Mr. Sharan then read from paras 6, 7 and 8 of the Delhi High Court judgment
The Bench said, “We would like to more thoroughly appreciate – does this kind of activity lead to HIV/AIDS. Is there a scoping study conducted by the petitioner, or the state?”

The judges wanted to know the term ‘procreation’ was linked to this discussion. Mr. Sharan said that there was no relevance whatsoever.

The Bench said that in order to constitute an offence, you needed a complainant and an accused. He asked if there was a third party who witnessed the offence , then it would it still be considered ‘in private’.

The Bench said, “We would like you to delve into this matter further. There are other sections like obscenity – the provision that makes sexual acts done in public an offence. Would this be in violation of Arts 14, 19 and 21. The verdict in this decision will have an impact on other provisions of the IPC. Keep in mind the entire gamut of laws that would be impacted.

The Bench then referred to Art 51A (e), the fundamental duty to renounce practices that are derogatory to the dignity of women. He asked of there were any acts that were being discussed here that would impact the dignity of women.
Mr. Sharan read from para 9 of the judgment  (legislative object of 377) and from para 24 of the judgment

Mr Sharan read from paras 15 and 16 of the Delhi High Court judgment (referred to the NACO affidavit filed in the High Court. Mr Sharan stressed that homosexuals were a high risk group.

The judges asked how this was relevant to 377. Mr Sharan said that this was not related and that the only reasons to hold 377 ultra vires would be if it was not enacted by a competent authority or if the law violated Part III of the Constitution (fundamental rights).

Mr Sharan read from para 25 of the judgment (Maneka Gandhi decision). He said that the High Court had not correctly applied this case

Mr. Sharan read para 26 of the judgment (right to dignity) and paras 29 to 39, which discuss the right to privacy extensively.  He said that the High Court had relied on a large number of US decisions although there was voluminous case law in India. He said that the circumstances in the case of Gobind v State of MP were coloured by completely different circumstances where the case related to surveillance. Mr Sharan read para 40 of the judgment (link between privacy and dignity).

Mr Sharan gave the court a copy of the non discrimination clause in the South African constitution (Art 9). He emphasized that the term ‘sexual orientation’ was specifically mentioned. “That is why it is really dangerous to rely on foreign judgments when our courts have covered this field and laid down the law”.

Mr. Sharan then read para 42 of the High Court judgment (sexuality and identity), and paras 43 and 44 (reference to the Yogyakarta Principles). He continued reading paras 45-47 (discussion on privacy).

Mr. Sharan said, “The reasoning of the High Court is fallacious. With due respect, the Court has reposed confidence in foreign authors about homosexuality. He said that the law had stood the test of time and stood for more than 150 years

The Bench, referring to the definition of ‘sexual orientation’ said that the meaning itself did not constitute and offence.

Mr. Sharan said that 377 did not penalize a section of society and only penalized a particular act. He referred to para 48 of the High Court judgment (which refers to the right to live with dignity and the right to privacy), and said that there was absolutely no basis for the high court to talk about personhood, or dignity of homosexuals.
Mr Sharan said that the findings of the High Court were not supported by materials or reasoning and asked the court how the right to live with dignity and the right to privacy could include the right to have carnal intercourse against the order of nature.
The Bench asked, “Is the word ‘sex’ used in section 377?”

Mr Sharan replied, “No, its never been used”. He said that the term used is ‘sexual offences’ for rape and ‘unnatural offences’ in 377
The Bench said, “This issue has cropped up and will crop us again- whether a provision of the Constitution or a law enacted by a legislature can be questioned by an organization or a group of people?” He asked if these views would represent the 120 million people living in India.

The Bench said that there may be cases registered where this type of law would violate the right to privacy . He said that the Preamble of the Constitution did mention the term ‘dignity’.

“It is a regular phenomenon that  a parallel debate goes on – one inside and one outside the court and sometimes it happens that our system falls prey to this alternative debate”, said The Bench.

“That’s why the lawyers in this case should not talk the media”, said Mr Sharan
“We are not concerned with lawyers talking to the media. It is the fundamental right to speech. But this parallel debate should not influence our proceedings”, The Bench said.

The Bench said, “Does a person have a fundamental right to do an act which is against the order of nature?”

The Bench said, “Have you got figures of offences under section 377 post independence? You have cited six cases in a given fact situation. The High Court judgment so far does not indicate how many such cases were instituted resulting in harassment to a particular section of society”.

The Bench said, “What happens if one section is challenged today and others followed?”. Section 304 B IPC (dealing with dowry death) could be challenged and it could be argued that the demand for dowry is my private right, and that the state cannot prosecute me. Would it be open to an organisation to say that section 304B is ultra vires the constitution?”

One more example could be offences related to obscenity in public spaces. In other countries there is a practice in football and cricket matches of people going nude . Can youngsters in our country say that it is their basic right to remain naked?
“Or their natural right”, joked The Bench.

The judges enquired in what circumstances a law could be challenged and said that this verdict would impact other legislations

“Does a person have a fundamental right to act against the order of nature?”, said The Bench. Does Article 21 empower someone to act against the order of nature? E.g. with animals. No one can say this. Which act is against the order of nature is also individual.

The judges said that they would like to be enlightened by both sides on both these questions. “This judgment is an illuminating one. There are a large number of authors , material related to international law used”.

The Bench said, “We were wondering Mr. Sharan, how many countries are there in the world?” He said that the judgment quoted 25 experts who framed the Yogyakarta Principles. “What about the other countries?”, he asked. “There are views expressed by various individuals. Some are researchers who arrive at analytical opinions. Somebody has their own view which is absolutely personal. Can this be relied upon in the judgment?”, he asked.. “All these years we have Prof so and so from Harvard, Yale, Oxford..we are yet to find Prof Upendra Baxi, or constitutional law and jurisprudence from this country”.

“What was the situation in our own country before the British took over administration?”, asked the Bench.

The Bench said, “What about other laws? Hindu Law, Mohammedan law, other religious law which governs sexual relations between persons.”

The Bench said, “We are asking all these questions to enlighten us , that’s all”
“There are Christian, Muslim and Hindu organisations who are represented here and will speak about this”, said Mr Sharan

“We want a more research based submission”, said the Bench.
The Bench referred to Art 13 of the Constitution, and said that the definition of law included custom etc.

Mr. Sharan said that where the law was not codified religious law of marriage, inheritance would apply

Mr. Sharan said that the conclusions of the High Court were not supported by any reasoning. The court had not shown how 377 was an impediment to the right to full personhood or took away somebody’s dignity. He said that the right to privacy does not include a right to commit a crime in private.

The Bench said, “Legislation decides what is crime. What is crime? For example, there may be a prohibition against marrying two persons in one religion. How can a person say I have a fundamental right to have two wives?”

“The law talks of unnatural offence. One may this is not at all unnatural. Can one say I have a fundamental right to commit an offence”?, said The Bench.
“Or that it includes the right to privacy”, said Mr Sharan

“We are not going on morals, we are going on the Constitution”, said the judges
“The Constitution itself says public morality in Articles 19, 25” said Mr Sharan
“It also talks of dignity of others” said the Bench.

Mr Sharan said, “The concept of dignity. How does it govern the field of carnal intercourse against the order of nature? It appears that the Hon’ble High Court has missed the tree for the woods”.

The judges asked, “Employees of an organisation can also file a case when there are service rules prohibiting a second marriage. My wife does not complain and consents. I could say – no, the time has come to recognize the right to privacy. You can marry even three wives if you can afford it. Why impose a restriction? Who is the police? What is society? Why should they object to this right? Why should the law punish me? It is my private matter ”

Mr Sharan said, “Such incidents will multiply and this will be deleterious to morals”
The judges asked Mr Sharan to clarify. “Orderly conduct will be impeded. Among two people, if one agrees to be murdered, there will be no offence”, said Mr Sharan.
“Many patients want their families to do this” said the Bench.

“Why should it not be treated as a part of the right to privacy?”, said the Bench.

“If such a provision is there that treats it as a misconduct, why should it not be struck down or read down?”, asked the judges

The Bench said, “If I can keep 5 cars, why can’t I keep five wives?”

Mr Sharan said, “I can keep 5 women, not 5 wives as it is against the laws of marriage“

The Bench said, “There are communities that believe we should maintain purity over race and so marriage is held within families, in violation of the Hindu Marriage Act.
Doctors may say that it is bad. They might say that we have the belief.” There is a new concept, we hear about it- exchange of wives – they say that this is private and consensual and why do you make it an offence”

“It is not an offence today”, said Mr Sharan

“If they make it offence, then what happens? The worst extreme must be considered to test the vires of a statute”, said the judges

The Bench said , “The statute does not look into a class of persons , a group- race, class, colour, religion etc. Therefore under 377 everyone has been equally treated irrespective of sex, class, creed , religion. How will Articles 14 and 15 be attracted”, he asked.

“We don’t have to remind you all. These questions could be misleading. These questions are for both the sides”, said the Bench.

“I have been in courts for a long time to know the import. You are trying to elecit the best performance from the lawyers”, said Mr Sharan. “You have more than 75 years of experience”, he said.

“Don’t make us that old Mr Sharan”, joked the Bench.

“The section could certainly be construed as a violation of the right to dignity” said, the Bench.

“The offence would be against dignity”, said Mr Sharan.

“The order of nature would keep changing, not with reference to nature at all  but to the ‘nature of humans’ said the Bench.

“This has not changed for the last 10,000 years”, said Mr Sharan

“Society has undergone changes. Bigamy was not an offence under the old Hindu law”, said the Bench.

“The nature of procreation and sexual urges have not changed”, said Mr Sharan
“It has changed”, said the Bench The judges asked Mr Sharan about artificial egg, sperm, cloning artificial limbs, stem cell theory and other scientific developments
“Science only harnesses what is natural”, said Mr Sharan

“What about artificial blood” asked the Bench. “We are pointing out that science is bringing out fast changes”

The Bench said , “Some animals are created without using sperm”

“Forty years ago very few people donated organs in India. Now it is common in many cases”, said the Bench.

“The petitioner is perhaps trying to foresee what is to come and represent a cause of a part of society who they call homosexuals or gays”, said the judges. “Why should you interfere by supporting 377?”, they asked Mr Sharan

Mr  Sharan said, “It is for the legislature to decide. The only scope for judicial action is if 377 violates fundamental rights  or the body creating it does not have a power to do so. There is no cause for interference as far as 377 is concerned” He argued that the right to life and liberty can be curtailed by law which prescribes procedure. He argued that the procedure in this case was the Code of Criminal Procedure (CrPC)and that it had not been argued that the CrPC does not lay down a fair and reasonable procedure

Mr Sharan argued that the right to privacy did not extend to committing a crime in private and that the Supreme Court had held that privacy was not a fundamental right and was subject to reasonable restrictions

The judges talked about the meaning of dignity. “Dignity is a sense of pride in oneself, and ‘worthy of respect’”, said the Bench.

The judges said that they were keen to hear the other parties and asked Mr Sharan to finish by the end of the day. They said they would restrict their queries for the next day.

Mr Sharan then read from Paras 94 and 98 of the High Court judgment (section 377 as facially neutral) and para 104 (the declaration)

Mr Sharan then referred to the A.K. Gopalan case that dealt with preventive detention. The case talks of how the right to life and liberty can be taken away by procedure established by law. Mr Sharan referred to the Maneka Gandhi case which refers to the interrelation between Articles 14, 19 and 21. “The entire discussion in this case centred around procedure- it has been held that procedure prescribed by law which curtails the right to life and liberty must be fair and reasonable and follow principles of natural justice.., the fundamental rights must be directly infringed”, he said. Mr Sharan said that section 377 did not directly breach Art 21.

Mr . Sharan will continue to argue on the next day of hearings. The matter has been listed for tomorrow (Thursday)

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