---------- Forwarded message ---------- From: Arvind Narrain Date: 22 March 2012 04:11
Minutes of proceedings dated 21.03.12 in Suresh Kumar Koushal v. Naz Foundation Attorney General – I have taken specific instructions and can clarify the position of the government. The Government accepts the correctness of the decision as far as the decriminalisation of consenting sex between adults is concerned. Section 377 is a pre-constitutional enactment and the basis of the view is an expansive view of Article 14 and 21. It violates Article 14 because it exposes a particular class of people to a kind of discrimination. That part of the order which decriminalizes private sexual acts between adults in private we do not challenge. This is the stand of the Ministry of Home Affairs. The brief was sent to the ASG, there was no communication between him and the MHA. He argued the same position as was taken before the Delhi High Court. When the MHA came to know, they clarified that this was not the position. When asked as to how had their position changed in the Supreme Court as compared to the Delhi High Court , the Attorney General said that, the government also learns and post the judgment, there was subsequent enlightenment. There were more questions from the Bench about what were the sexual acts covered by Section 377 and how was it violative of Article 14 and 21 especially when it was not applicable to homosexuals .. Mr Desai continued his arguments Section 377 is cast in the widest possible terms the language is whoever and includes homosexuals and heterosexuals. The word carnal intercourse includes all physical relationships which result in pleasure. The word intercourse implies two bodies joining for pleasure. It is not confined to anal sex also includes oral sex as well as sex using the hand as per interpretations of the courts. The phrase against the order of nature includes contraception as well as oral sex and anal sex within the marital relationship. He read out an Outlook survey which communicates that oral sex is a practice in 37 % of the population The Bench: We do not go by media reports and media surveys AD: the purpose is not to assert that there are 37% the numbers may vary, but just to say that this is a practice which we cannot pretend does not exist. Attorney General is asked by J. M. What is the sexual act under Section 377 ? who is the accused and who is the complainant if the act happens in private ? Who is the victim ? AG- State can view certain actions as illegal and offensive. Privacy is good up to a point. The HC judgment is a development of the law. Bench- How is homosexuality a minority? Section 377 has nothing to do with a minority. AG- The stand of the Union of India is clear, there is no appeal, we accept the reason of the High Court that consenting sex between adults in private is not an offence. Ashok Desai continues : As long as the law applies to same sex relationships in private it violates privacy, dignity. The older view of the Supreme Court was that procedure established by law had to be tested only on Article 21 and Article 21 was an island by itself. This has been cited by the other side. Further a procedure prescribed was enough However this is not the correct position. If the law of Henry VIII prescribes punishment by putting a person in boiling oil that would be valid as a procedure is prescribed. This was the view taken by the Court prior to Menaka Gandhi. However the three parts of Gopalan were knocked out by Menaka Gandhi 1. Article of Fundamental rights are not islands by themselves 2. Procedure has to be a fair procedure 3. Due process concept was added and the judges transformed what was intended by the Constituent Assembly. Section 377 violates dignity, privacy and personal liberty. It is clear that any infraction must be tested on all aspects. A law affecting personal liberty must be tested on 14 and 19 as well. No article in the constitution is an island by itself. As Menaka Gandhi notes, courts must expand the reach and ambit of Fundamental rights and not attenuate their meaning. >From Menaka Gandhi to Sucheta Srivatsva ( right of disabled person to choose to procreate or not to procreate) we have seen an incremental expansion of rights in this area. We are also on an educational curve. The bar and the bench participate in the same process of learning. Section 377 curtails a persons liberty to be himself. Article 21 includes the freedom to form consensual relationships and the liberty to live in one's own country without fear of criminalisation. The right to privacy has been extended from freedom from surveillance visits. In Kharak Singh, Subbarao J. said privacy is part of personal liberty and includes the freedom to be free from psychological restraint. It is the creation of conditions for freedom. A persons home is his castle. Both Matthew J. in Gobind and Subbarao J. in Kharak Singh expanded our own understanding of personal liberty to not only what has been to what may be . Our judges have created a right to privacy and respect for personal autonomy. The right to privacy has been elaborated in a series of US decisions Girswold – right of married couples to use contraception Eisenstadt- right of unmarried couples to use contraception Roe v. Wade, right to abortion Planned Parenthood, right to abortion lawrence v. texas, Sexual identity and the right to form sexual relationships form an inalienable part of Article 21. There are enough indications Gobind – right to privacy and intimacy PUCL and Selvi elaborate the notion of privacy of the body. Right to privacy is entrenched in international law. Article 17 of the ICCPR. Also refers to Dudgeon decision This case would have been difficult to argue fifty years ago, society has changed since then. Bench- Society was different even before 1860 if one looks at the temples etc in India. Why go outside India ? The judgment of the Delhi High Court is about same sex relationships but the law is about acts. Mr. Desai: This law is also about marital relationships. Singhvi J. We have struggled with this for three weeks. I read one story ( From Same Sex love in India) There are a variety of authors/poets who show that same sex attraction was natural. Relationships /intimate relationships/physical relationships all within our country. Now we see it only as sexual intercourse. This is a perversion. Somebody thrust this provision on Indian society. Parliament has had no time to reconsider this issue. Do you know the story of Karna and how he was born and how was Ayappa was born ? In mythology in Urdu/Sanskrit these stories continue. It was denounced by the British. It is only after the British that we say it is wrong. We dont need to go abroad ( when the National Coalition judgment was mentioned), our jurisprudence is wide enough. Mr. Desai: The pleadings are wide enough to encompass both homosexuals and heterosexuals. …. If I have to sum up my pleadings in a sutra it would be that the police must stop at the bedroom door. Arguements on Article 15 and Article 14... Ends by quoting Pratap Bhanu Mehta There come moments in the life of a nation when it has to confront its deepest prejudices and fears in the mirror of its constitutional morality. The Delhi high court’s judgment in Naz Foundation vs Union of India, decriminalising private, adult, consensual homosexual acts, does just that. The judgment is a powerful example of judicial craftsmanship. It is, unusually amongst recent judgments that are constitutionally significant, clear and precise. It embodies the right combination of technical rigour in thinking about the law, with a persuasive vision of the deepest values those laws embody. Mr Siddharth Lutra on behalf of Nivedita menon and other academics The origins of Section 377 can be traced back to a notion of sin which is linked to one religious tradition. This notion of sin becomes a part of the secular law in England. This same notion becomes a part of the Indian law through the Code of Macaulay. Criminal law is part of a state's decision to ensure order in society. The proscription of an act is the highest expression of the law. Can you impose this viewpoint from a religious framework on our society. My argument is not against any one religion but a more general point that the imposition of the viewpoint of a religion on all through criminal law would be against secularism ( S.R. Bommai's case) Singhvi J: Over centuries one kind of affection has been the accepted norm in society in the east, west, north and south AG: In Geneva I was asked by the Scandanavian countries as to what is your approach to the question of homosexuality. I did some research and found out that in England in the 19 century there was a repression of sexual mores. Oscar Wilde is the best example. People ran away from England and took up positions in the army. To protect their own soldiers the British enacted Section 377 In a puritanical England it was unthinkable that men have relationships with men, that women with women. Affection between the sexes was unthinkable. Any intercourse other than peno vaginal was unthinkable. Bench: After 1950 Article 372 allowed pre colonial laws to continue subject to Article 13(1). So the question is to what extent they will become void? Societal attitude changes, society accepts relationships not traditionally accepted. Section 377 was imposed upon us. We did not have this notion. AG: There is an attitudnal change in society. It accepts human relationships not just sexual relationships. The question is whether society is ready. The offence reflects society. Mukhpadhyay J. We never used to discuss this, now we are openly discussing in court. Singhvi J. There was this sexual activity even before 1860 maybe since man became civilized or maybe even before that. If for centuries this kind of activity has been happening, how can it be against the order of nature as thought of by the church of England. Since parliament is the voice of the people, why has it not sought fit to reform the law ? AG: I have three answers 1. Some IPC provisions may have outlived their utility. eg. Offences against coins not relevant now 2. A section in society opposes this. They dont like to see gays in streets . They have a right to their opinion 3. There is no momentum for parties to take up this matter Singhvi J: Parades there are fashion parades now not more than ten years ago they began. Fashion parades like coco cola will become a part of even village life. 1. J. : They may be marching in urban areas but may be a majority in rural areas AG:. Our own society is in the throes of change. It has opened up. Where it will take us, there is no answer. This case has been decided on a question of Fundamental rights. The task is more difficult. The extension by the courts of the order of nature is strange as being everything which does not lead to conception. Singhvi J. There should be a debate in an appropriate forum. In the High Court two judges decide, here again two judges will decide. How can two people decide what would affect the entire society. AG: Your Lordship means that one takes a viewpoint without full debate. MJ. : Would breast feeding come within the meaning of carnal intercourse, what is carnal intercourse ? Mr. Lutra continues: Citing an artilce by Kirby J. the anti sodomy laws were the least lovely colonial export and Section 377 travels to all the colonies. Mr. Dayan Krishnan for the mental health professionals Bench: Were you a party before the HC DK: No, but your Lordship has allowed the intervention. I want to make two points take only ten minutes. Homosexuality as per current medical opinion DSM IV and ICD 10 is not a disease and hence a normal variant of sexuality. Bench: We do not want to know if this is or not a disease. Are there sexologists among your doctors DK. The APA takes the position that homsexuality is not a disease Bench: Section 377 is not about homosexuals. This is to misunderstand the issue. DK. There are guidelines by the American Psychological Association which refer to Lesbian, gay and bisexual persons Bench: Same sex , same sex same sex , what about heterosexuals ? Bench: The number of homosexuals in America are …. , one third of the population is gay. And the number is rising. Fortunately the number as per NACO is only 22 lakhs in India.
