IPC 377 : Supreme Court & the Queer Future (Day 6, 7 & 8)

*Editors’ Note – As reported by Vikram Doctor*

Partial report of days 6 (28-Feb-2012), 7 (29-Feb-2012) and 8 (1-Mar-2012) in the 377 case 

First, apologies to everyone for not being able to post updates on the 377 case
this week. The reasons are both personal and general and I’ll do my best to
rectify them. For the record, the case was heard over Tuesday (28/2), Wednesday
(29/2) and Thursday (1/3) and now is on hold for 10 days until the Supreme Court
comes back from its Holi break.

I wasn’t able to post updates partly because I had work in Nasik and while I had
thought I’d be able to get and post info, in the place I was, really way out in
the countryside, I found of course that my Internet connection disappeared. I
had feared this might happen, but the reason I felt I could take this trip was
because I didn’t really anticipate much to happen this week.

This was because it looked like this week, and quite some time more, would be
devoted to all our many opponents. The Bench has given the first lawyer, for
Koushal, a regular amount of time, but had given the second lawyer, for the
Delhi Commission on Child Rights, a lot of time, and while it was unlikely all
the others would get as much, I still thought they’d get a fair amount of time,
and in total this phase would go on for quite a while.

But in fact what happened on Tuesday was that the judges indicated that they did
not want proceedings to stretch out at length, and the lawyers were given the
signal that they should hurry up, because they wanted to start listening to Fali
Nariman, who as the seniormost counsel in the case would kick off the arguments
from our side.

Some of our opponents were given a decent amount of time, like JACK, perhaps in
view of the fact that they have been the most devoted opponents from early on in
the Delhi High Court. They were given about an hour and a half today. But then
just before lunch the time given to our opponents came to an end, and Fali
Nariman got up to speak.

What this means, as far as the minutes goes, is that the people who were
compiling the information were simply too busy with preparations for our
arguments to pass on detailed information to me, so I simply had nothing to
post. I am trying to put together this information in the break that now starts
and I will try and post a consolidated account of what happened in the last few
days by this weekend.

And a lot happened! This seems to have been a rather roller coaster few days in
the case! This was only to be expected, I guess, when you have a group of
determined haters out to spew their worst, but I gather that it was really
difficult to hear some of the stuff that came up. I realise one should take a
detached attitude to this, that some stuff is said for effect, that one
shouldn’t take things personally, that a lot of what was said was so ridiculous
that it should be discounted…. but I don’t think it could have been easy to

I don’t think anything can be assumed about what the judges felt about all this,
but I think one thing is clear that these are judges that are going to
methodically go through all aspects of this case, good or bad, serious or silly.
So they would sometimes have seemed hard on the arguments, sometimes receptive,
and they will do the same with the lawyers on our side and no real conclusion
can be drawn from anything they say, which might be reported in the media.

I do a few core issues are coming up. There is the question about whether this
is a sexuality, whether something like the homosexual community can be said to
exist, or whether it is just a sexual practice. There is the question of what
decriminalisation might mean for other laws.

And there is the question of impact, in all its aspects. Has the law really
impacted people’s lives? Is there real harm or just a perception of it, which
might be unfortunate, but may not actually be due to the law? Has the
decriminalisation that has been in place since the Delhi High COurt decision had
any real impact? Are people less persecuted? Have HIV rates come down? What does
it mean not to live under 377 – and what would it mean if the law was in force

This is a really key question and perhaps its something we should be discussing
and describing on these lists, an exercise we all can do in tandem with the
courts. Do you feel your life was raelly affected when 377 was in force? Has it
changed now that it is not? And how would you convince the judges about that?

Finally, just before lunch Fali Nariman started speaking and this was clearly a
moment that everyone in court had been waiting for. What can one say about
Mr.Nariman other than that he is the seniormost and most respected counsel in
India today. He is a legend in the Court, for his vast experience and abilities,
the number of historic cases he has fought, and, despite his age, the sheer
vigour and power he still brings to his arguements today.

We can perhaps say this. When Mr.Nariman was approached by us to appear in this
case – of course, pro bono, since we couldn’t dream of paying the sort of fees
he charges for a single appearance (and he will have to make many for this case)
– he agreed. He has, I’m told, given the legal team a really tough time as they
prepare for this case, but he is totally on board, fully aware of both the
historical nature and the human imapct of this case.

Mr.Nariman is representing something equally human and historic – the petition
from a group of parents of queer kids who have come together to defend their
kids and argue that, unlike the arguments put forward by some religious people
that homosexuality destroys family life, it is really the law that destroys
families lives, by criminalising their kids for no fault other than being what
they are. The parents are from across the country, from all social stations and
different sexualities.

And from what I have just heard from people in court, Mr.Nariman has delivered
today! I heard that he was simply brilliant, eloguent and effective. He cut
through all the prejudices displayed by our opponents in the last few days, all
the legal quibbles they brought up to drag the Delhi High Court decision down,
all the arcane historical arguments and cut it down to the basic question: that
this case affected people’s rights at a very deep and personal level, in a way
that did no harm to others, no matter what our opponents fantasised, and could
the court really take away such rights?

Mr.Nariman will continue speaking after the break, and then our other lawyers
will come – for Naz India, for Voices Against 377, for the leading mental health
professionals, for the leading academics, for Shyam Benegal, and one more, from
Ratna Kapur, the prominent Delhi based feminist, legal scholar and activist.


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