IPC 377 : Supreme Court & the Queer Future (Day 6 Detailed Report)

*Editors’ Note – As reported by Vikram Doctor*

Apologies for the delays in posting this, and the next day’s events, which when done should bring us up to where we wil be on Tuesday, waiting for the case to start again. This day’s events was all our opponents and I will admit that part of the reason for my delay in posting these was simply not wanting to deal with their arguments. Anyway, here it is.

SC hearing Day 6 – 29.02.

The hearing continued with the Mr.Jain, the counsel for the Krantikari Manuvadi Morcha speaking. The previous day he had only had a few minutes to speak, in which he made the point that this case should not be in this court at all, because it was up to Parliament, not the judiciary to decide these matters.

Mr.Jain: “Civil society cannot function if there is absolute freedom … The IPC contains restrictions that are acceptable to society. Chapter 14 is on offences affecting public health. … Parliament has agreed on this. Parliament has to see what is correct or not for society.” He said that the fact that a law could be abused was not grounds for abolishing it.

The Bench asked what about harassment by the police – what if the law was abused by those in charge of upholding it. Mr.Jain sidestepped the question and also suggested this was only an urban concern: “Ultimately it is the government or parliament that decides. This could antagonize the villages.”

The Bench reminded him that someone has spoken for the government, and reminded him again about reports of police harassment. MrJain: “It is a failure of the machinery, the police, not the law.” He also threw in a federal objection by noting that it was the state governments that implemented the law, so how could someone from the central government speak on the matter.”

The Bench: “Who? Which department?”

Mr.Jain: “Everybody. On which basis are they making a statement?”

The Bench: Each case of constitutional validity relates to states vs. parliament. Is about the legal aspect or …?”

Mr.Jain: Only about the legal aspect. The law can only be amended by the parliament.

The Bench: What is the difference between the central government and the Union of India?

Mr.Jain: “It is a strange stance that the government of India is taking.”

The Bench: “Nothing is strange. They have taken a particular stance. That is all.”

Mr.Jain goes back to talking about the rights to privacy and to life not being absolute: “The right of privacy cannot be used as a justification for committing an offence.”

The Bench asked Mr.Jain to finish and file supplementary submissions if he had more to say. They seem to have decided to speed up this part of the trial, and get all the many other opponents to finish, so they could get on to hearing our side. Nobody will be given the time that the first few petitioners got.

Next up is Mr.Radhakrishnan, counsel for Trust God Ministries, a Kerala based evangelical group. He starts by dismissing any idea of the HIV/AIDS being involved with 377, which he argued was created by the legislature to preserve peace in India and protect morals and values over here. (If I’m correct, the ‘legislature’ that created the IPC, after it was drafted Macauley, was the four British gentlemen of the Governor-General’s Council in 1860).

Mr.Radhakrishnan then went on to attack Naz India specifically for setting up a NGO to support gay men who were suffering from discrimination: and speaks on behalf of Trust God Ministries): “Instead they should have worked to integrate them into the mainstream society and rehabilitate them. They are an NGO. This is expected of them.”

He then went on to remind the National Aids Control Organisation of its mission by reading from its website: “NACO envisions an India where every person living HIV/AIDS has access to quality care and dignity … which is only possible in an environment where the human rights of people are respected … without stigma or discrimination .. by fostering close collaboration with NGOs …” What this meant, said Mr.Radhakrishnan, was that NACO was supposed to motivate people for ‘responsible behaviour, not for homosexual behaviour. This is NACO’s whole goal. Their aim is to “save their life”, not “safe sex”.”

Having disposed of the judiciary and NACO’s role in the case, Mr.Radhakrishnan briskly moves on to the concerns of even more defenceless entities: “377 is limited to consenting adults. So are persons under 18 not covered by Article 21? What is an offence or not when a child under 7 is concerned? Children between 7 and 18 are still under the purview of 377. But 377 does not have any age regulation or concept of consent.”

The Bench reminds him that there’s the Juvenile Justice Act to take care of children. Not good enough says Mr.Radhakrishnan given the urges of gay people: “The petitioners are aware of the concerns regarding minors but they cannot resist temptation.” But having made this statement, Mr.Radhakrishnan tempers it with some compassion: “It is very difficult to identify gay people, homosexuals, sex workers. Like for Malaria, Cholera, … we need a rehabilitation program. This will spread the disease otherwise. For the prevention of smoking and addictions there already are clinics. NACO as well as NAZ are misdirecting themselves.”

Its not clear from the notes if Mr.Radhakrishnan is advocating treatment and rehabilitation for HIV or homosexuality here; given his arguments so far, it could be both. He then cracks the whip again by reading out parts of Section 269 of the IPC: “Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six month, or with fine, or with both.” If LGBT people are negligent doing this they fall under the purview of Section 269. He also reminds us that Section 270 says whoever “malignantly” does this is also punished, and Sections 292, 293, 294 deal with obscene books, materials, objects, acts, songs and so on.

Mr.Radhakrishnan now moves on to rape, which is section 375 of the IPC, and he brings in some biology here, though like most of our opponents he only seems to equate homosexuality with sodomy (and women, of course, are not even considered) : “375 deals with sexual offences. 377 deals with unnatural offences.. Every organ in the human body has a designated function assigned by nature. The organs work in tandem and are not expected to be abused. Exactly that happens here: there is abuse, orally and anally. Those organs are not expected for sexual use. If it is abused, it goes against nature: “carnal intercourse against the order of nature”. In 375, only sexual organs are involved. In 377, people can be of same or opposite sex, and penetration is necessary, but the other’s sexual organ is not. Consent is not defined. “Voluntarily” is defined… Consent is distinctively absent from 377. Passive agent can also be booked as offender [unlike under 375]…”

Mr.Radhakrishnan now winds up by asking what will be the result of decriminalisation: “We are getting more exposure in the media to this judgment, and minors do also. Say there is a gay boy or girl going to school. What will be the situation of the family? They have to take care of them until they are 18. This is dangerous of these NGOs, because they are advancing this case.” He also notes that since these NGOs are funded by NACO, the state is also party to this irresponsibility: “The state is involved, but there can only be one stand, the law of the parliament!”

We stay with the evangelicals, as Mr.Giri, the counsel for both the Apostolic Churches Alliance and Utkal Christian Council comes up next. It must be interesting for the Utkal Christian Council, which defends the rights of Christians in Orissa, to be sharing a platform with the Krantikari Manuvadi Morcha, which attacks the rights of Christians in Orissa).

[The notes I have at this point are a bit unclear. I think the person taking them couldn’t hear Mr.Giri, and also the next counsel].

Mr.Giri starts by reading from the part of the High Court judgment where it says you cannot criminalize something that is a natural urge of an individual and also on how there are different conceptions of morality.

Mr.Giri: “I am asking you that whenever there is a challenge to a law on constitutionality, you do not look at this law as apart from the rest of the constitution.”

The Bench: “Can there be several stands from the government?”

Mr.Giri: “Yes. The Health Ministry said that 377 actually stands in the way of HIV/AIDS prevention as an unintended consequence, in addition to violating Article 21.” He reads out Section 377 and continues, trying to argue that it does not describe a sexuality, just a sex act: “It does not classify people into groups, it only describes an offence. But it has found favour in the High Court. According to the High Cout, sexual orientation is held to be part of Article 21. Where does 377 speak of sexual orientation?”

The Bench: “Is it a normal or natural sexual orientation?”

Mr.Giri: “It says “order of nature”, not natural.”

The Bench: “Normal and natural will come in all human beings.”

There’s a lunch break, and Mr.Giri continues after as well, still on the point that it is wrong to assume that sexuality is something fixed and unchangeable kind as described in the High Court verdict.

Mr.Giri: “What is criminalized is an act. The rest is a matter of interpretation of what is against the order of nature. … The error committed by the HC is that the sexual orientation of a person seems to be immutable. There is no place for such a conclusion. … The HC made two assumptions: one, that sexual orientation is immutable and two, that sexual orientation can be naturally demonstrated only in a way as contemplated in 377. It is not considered that such a sexual orientation is a disease or needs therapy. What is criminalized is just the act, independent of the sex of people or sexual orientation.”

Mr.Giri goes on to note that the High Court verdict was limited to adults, and the Bench is interested and wants to hear more, but Mr.Giri doesn’t oblige – not surprisingly, since this is an argument in our favour! He tries to broadbase the argument by bringing in single parents, abortions and other things the religious groups who are his clients don’t approve of. This leads to an interesting exchange, where the Bench tries to pin him down with some precise questions that, I think, show that the judges are getting the ramifications of the case. Mr.Giri however is probably not, and he seems quite confused.
The Bench: “There are different religions. Where is your role in this case? Do we only have one concept of morality? A large number of people do not believe in religion in this world. How is it related to laws in countries with a different context?”

Mr.Giri: “The role is wherever there is a manifestation of a sexual urge that is considered illegal.”

The Bench: “Can there be a different sexual orientation in a child? Parents may be worried: why has the sexual urge not come? Sexual urge is an inherent phenomenon in human beings. How does it have to do with sexual orientation? … Can sexual orientation change because of any factor? What is natural?”

Mr.Giri: “This is a bizarre question. It is difficult to answer.”

The Bench: “A fundamental right should have a corresponding fundamental duty so it does not interfere with the fundamental right of others.”

Mr.Giri: “I cannot give a response to this immediately.”

The Bench: “Does sexual orientation change at different ages? Can it be there at age 6?”

Mr.Giri: “Freud would say so.”

The Bench: “Therefore we are talking about the order of nature. That is why we are talking about this. Can it change?”

This might actually be an opening for Mr.Giri to deploy the “its just a phase” that so many gay men have got from their parents, but he doesn’t take it, focussing instead on the issue of whether anything consensual should be allowed: “Minors have been excluded not because of immutability but because of consent. It cannot be accepted that anything with consent has to be legalized. An act of adultery has the consent of two parties but is still illegal. So is attempted suicide. Whether proper reasoning has led to these provisions is irrelevant. Consent is not sufficient.” (Both the examples he’s given, of adultery and suicide are sections of the IPC like 377 that many would argue should no longer be there, and both have been contested in the courts, which might be why he adds that line about proper reasoning being irrelevant which, it would seem to me, rather undermines his case since he’s more or less admitting they are irrational).

Mr.Giri then goes after the High Court’s arguments that 377 helps with HIV/AIDS prevention: “There is not sufficient evidence for this. Only two papers are referred to. One is a scientific study by the National Institute of Health on behavioural patterns and AIDS. It also makes reference to the fact that HIV/AIDS is higher among MSM. It refers to the fact that it is not about sexual orientation: many of them are married, so they are not incapable of having sex with their wives. They also cause infections to them.” He then refers to the High Court’s reference to Lawrence vs Texas and a study from the US Centre for Disease Control).

More biology now from Mr.Giri: “Anal sex is one reason for a higher infection risk… The anus is vulnerable to tears due to anal sex which influences the likelihood of getting AIDS.” He refers to an article from the Journal of Homosexuality, listing a number of health problems resulting from anal sex, like diarrhoea and gay bowel syndrome. This last is an outdated term that was coined in the early 1970s to refer to a range of gastrointestinal problems that showed up with his many gay patients. As this link explains, it is no longer used – in fact, an article in the same Journal of Homosexuality mentioned by Mr.Giri specifically states that it has been withdrawn. One might get more annoyed at this selective use of information, if it wasn’t for the image of Mr.Giri and his clients reading the Journal of Homosexuality for research: http://en.wikipedia.org/wiki/Gay_bowel_syndrome)

Mr.Giri: “Same-sex sex is more harmful to public health than opposite-sex sex. What is pointed out are sexual acts, not sexual orientation in any of these materials. Therefore the HC judgment that 377 is in the way HIV/AIDS prevention contradicts these materials, including materials by NACO.”

Mr.Giri now turns to attacking the influence of such meddlesome bodies like the International Commission of Jurists, which in 2006 formulated the Yogyakarta Principles that form a basis for the international application of human rights to lgbt issues, and the United National Human Rights Commission, that in 2007 took on these principles as a global charter for gay rights. (More information here: http://en.wikipedia.org/wiki/Yogyakarta_Principles). Mr.Giri does not mention either of these bodies, of course, but just goes after the High Court’s use of the Yogyakarta Principles: “These principles were formulated by people who call themselves experts on this matter. … Sexual orientation and gender identity are defined by the HC in references to the YP. It was an international panel of experts on international human rights law.”

The Bench: “Have the Yogyakarta Principles been adopted by the UN or another body?”

Mr.Giri: “No, they are not part of any covenant or resolution…. According to me, these are subjective perceptions.”

The Bench: “Are they sanctioned by law in any country?”

Mr.Giri says no: “I would not refer to it but because it was referred to by the High Court. … The intention is that sexual orientation is upheld as part of privacy and that it is part of human rights. It also supports the idea that the family could be other than a man and a woman. The Yogyakarta Principles have this in mind. The High Court should have looked into the content. If the Yogyakarta Principles are relevant, please look into the document in its entirety.”

The Bench: “Reading this also requires some privacy.”

Mr.Giri: “I have one more submission: that morality is not kept separate from legislative provisions.”

The Bench: “Usually people will omit this: in 1921, under the British government, people who consumed liquor were seen as immoral. So if you go by that, then you know how many people would fall into this category today? (laughter) I am just pointing out how much things have changed. …”

Time is running out, and and there is just time to hear from Mr.Ahmadi, the counsel for the All India Muslim Personnel Board. The AIMPB is probably the most formidable party among our opponents, an institution of recognised importance and its fair to say that their entry into the case was not a good moment. Yet I’m told that Mr.Ahmadi’s presentation was rather muted and one of the sources said he spoke to faintly it was hard to hear him. But the notes I’ve got from another source do spell out his arguments in more detail and they are rather more cogent than those made by most of the other counsel. For example, he is the only one to look at the dissents to the Lawrence decision made in the US Supreme Court, and he suggests that their spirit is closer to the ideology of our Constitution .

Mr.Ahmadi: The right to sexual orientation can always be restricted by principles of morality and health . The principle of strict scrutiny is exported from foreign decisions and is not a principle which can be used in our constitutional law. (The Delhi High Court used the strict scrutiny principle to hold 377 violative of Art 15) . Therefore the expression sex in Art 15 is only gender specific and does not include sexual orientation. To support this proposition I refer to constitutional assembly debates on Art 15 to show that this was not contemplated by the Founding Fathers. If you interpret privacy broadly then the adultery provision could also be challenged, a lot of activities that are perceived as sexually immoral will also come under attack. e.g. incest is condemned by most religions. If a legislature enacts related to group sex (for same sex or different sexes) can this be challenged , going by the analogy of the High Court decision, you cannot pass such a law.

Mr.Ahmadi then read from Justice Scalia’s dissent in the Lawrence case saying that the passages in the dissent are more in tune with our Constitution than the majority decision. He stressed on Scalia’s ruling that the promotion of majoritarian sexual interest was legitimate state interest. The law against public nudity , for example needs a rational basis, and why it is targeted against nudity is clear. The moral disapproval of same sex couples was no different form this law. The courts in the U.S. have taken sides in the ‘homosexual agenda’, where courts have decriminalized homosexuality without persuading a majority of their fellow citizens and without a democratic majority. What the state of Texas had chosen to do (enact anti sodomy laws) was well within traditional democratic action. Later generations could always repeal these laws.

Mr.Ahmadi also read from Justice Thomas’ dissent in the Lawrence case, and he then brought up the religious arguments. He said that homosexuality was condemned by the Bible, Arthashastra, Manusmriti and Quran. He quoted the following cases- (1996) 2 SCC 648 (the right to suicide case where sanctity of life held to be a moral that could be protected through legislation), (2004) 11 SCC 26 (a case where the state could use disincentives tpromote family planning), the case of X v Y (this is really the name of a case which pitched the right to privacy of persons living with HIV/AIDS with public health concerns) and the case where the adultery provision was upheld. He cited the 42nd Law Commission report that says that homosexuality should not be repealed.

(Note: this is rather disingenuous on the part of Mr.Ahmadi. Law Commission reports are suggestions about what needs to be done to keep our legal system up to date, but the 42nd Law Commission report was issued in 1971 – over 40 years ago! Much more recently, the 172nd Law Commission report, issued in 2000, which deals primarily with the need to reform the rape laws, also clearly calls for the deletion of 377. Here’s a link:http://lawcommissionofindia.nic.in/rapelaws.htm)

Mr.Ahmadi stressed that courts by their very nature should not undertake the task of legislating. He said the Delhi High Court was not clear if it was severing the law, or reading it down. He said if the language of the section was plain, there was no possibility of severing or reading it down. He said that irrespective of the Union Government’s stand, so long as the law stands on the statute book, there was a constitutional presumption in its favour . He said there was not even a single Indian judgment to support the contention that Art 15 includes non discrimination based on sexual orientation

That’s it for arguments for the day, but before it ends, the Bench reminds Mr.Jain, the ASG, that they had asked for statistics on people with HIV/AIDS.

To help flesh out the notes for today, here’s a report from The Telegraph (thanks to Bruno for bringing it to my attention) which caught some comments that I don’t have and add a bit more detail to the proceedings:

Gay sex ruling runs into ‘morality’ hurdle,
Our Legal Correspondent

New Delhi: Organisations representing Hindus, Muslims and Christians today objected to the Delhi High Court order legalising consensual homosexual behaviour in private on the grounds that it was “immoral” and against “religion” and “majoritarian sexual morality”.

Opening arguments in the Supreme Court in a batch of appeals against the order that kept all adult consensual sex in private out of the ambit of Section 377 of the Indian Penal Code, the Krantikari Manuvadi Morcha Party argued that laws were a reflection of a society’s moral standards. Societal morality and discipline was maintained by Parliament by framing laws, said Morcha lawyer Sushil Jain, who concluded his arguments today.

Adultery, sati and dowry were crimes because Parliament has enacted laws to prohibit them, Jain said, pointing out that sati was outlawed despite sati temples flourishing all around. “Ultimately Parliament has to see what is wrong and what is good for the society,” the Morcha said, also citing the anti-dowry and anti-narcotics laws as an expression of societal morality through Parliament.

The Morcha, which has been arguing for the past few days, cited the example of an earlier challenge to Section 498A of the IPC (the anti-dowry law) that fell through because the courts rejected the theory that misuse of a law could be a reason to strike it down.

Justice G.S. Singhvi, sitting alongside Justice S.J. Mukhopadhyaya, however, pointed out that in this instance the state had admitted to harassment of the gay community by police. Jain said harassment could be said to be a failure of the machinery and not a failure of the law. “By that logic, the whole of the IPC is being misused by police every day, it should be struck down,” he contended.

Justice Singhvi countered this saying: “If the state admits that the IPC is being misused, we can consider that.” The Morcha lawyer then argued that the harassment claim was not backed by any data. He also said Section 377 had once been amended by Parliament and every issue involved examined by the House.

After Jain had concluded, the Utkal Christian Council and the Apostolic Churches’ Alliance argued that Section 377 only targeted sexual activities and not people. They pointed out that sodomy was still a ground for divorce in many personal laws. Legalising gay sex, they feared, would lead to same-sex marriages and same-sex families.

Justice Singhvi intervened to say that things were changing at a very fast pace. He cited the example of the Sikh Gurudwara Act enacted by the British which described anybody drinking alcohol as “patit” or “fallen”. “By those standards, how many of us will now be patits?” the judge asked.

The All India Muslim Personal Law, through lawyer Huzfaa Ahmadi, objected to the government’s attempts to be neutral. Huzffa said: “It is the government’s constitutional obligation to defend the law. It cannot say that it will not take a stand.”

At this point, Justice Singhvi took a dig at the government: “This is a new phenomena. I will be neutral; I will not defend the law.” The government has sought the court’s permission to take a neutral position on Section 377, but has not yet been allowed to do so.

Huzfaa also pointed out that homosexuality was a crime in at least 76 countries. “Promotion of majoritarian sexual morality is legitimate state interest,” he said, citing a US judgment. The logic to justify homosexual behaviour — that it was adult, consensual behaviour in private — could be used to also validate incest and group sex, the lawyer said.

At the close of arguments today, Justice Singhvi sought information from the health ministry on the NGOs it enlists for controlling AIDS/HIV. The bench also directed a senior health ministry official to be present in the court tomorrow to present comprehensive statistics on the number of HIV-affected people in the country.

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