Orinam thanks all those who have worked to bring our readers a compilation of 15 days of Supreme Court hearings in the Naz Foundation case held in Delhi earlier this year, 2012.

The file may be downloaded here.

And I can tell you taking notes is not easy! The courtrooms the case is being heard in (numbers 5 and 6) are not large, so although there is provision for microphones they are not used. The lawyers and judges who are quite close to each other can hear each other easily, but from where the non-legal people in court have to sit, right at the back, it is not that easy to hear and make notes. (There is no other provision for recording the proceedings).

So when some of the lawyers speak rapidly, especially when they are reading out from cases, its almost impossible keeping track of them. A lot of the dialogue is about legal points, with references to judgments, digests of cases in the SCI and other courts abroad, and this is really hard to keep track of, and it makes me appreciate the efforts of the people who have been taking notes all the more.

The other problem is that there has been so much. These last three days have been almost entirely devoted, from 10.30 in the mornings till around 3.30-4 in the afternoons to the case, which means reams and reams of notes. I brought new notebooks to court, would run out of them and have to turn them around and continue scribbling behind! Its going to take some time to sort out all these notes, compare with the other person taking notes, and be able to give what would still be only a partial and broadly indicative idea of what was being said.

The other problem is that these have been really up and down days, so one has to deal with one’s own emotions and reactions! From the reports I’ve sent out earlier, you can see that the judges were quite hard on some of the petitioners, asking for clarifications and probing for inconsistencies. But now that our side is being heard, they have been equally probing on us.

Sometimes their questions seem to show an understanding of our arguments, but then the very next question can be really startlingly basic. It is hard not to wonder where their minds are going on this case, but at the end of these three days I can really only say I have no idea. Sometimes they seem positive, sometimes negative and most times you just have no idea. The way to look at it, I guess, is that the judges are doing their job and giving the Delhi High Court verdict a thorough scrutiny from all sides.

As I said, all these three days were devoted to our lawyers. First up was Fali Nariman, the counsel for the petition from the parents of LGBT children. Normally the first speaker would be the lawyer for the lead petition, which in this case is Anand Grover for Naz India, but Mr. Nariman is the most senior and respected counsel in the Supreme Court and when he took on this petition, pro bono, because he realised its importance, it was always clear he would be first to speak.

Mr. Nariman is the great constitutional lawyer of our times, and his arguments focused firmly on the constitutional aspects of the case. He looked at the way the law, which far predates the Indian Constitution, is an inconsistency to the progressive spirit of the Constitution. He also took head on an argument that has been made, that this Court should not be dealing with matters like this, but should leave it to Parliament. He argued that an overtly activist Court might pose problems, but at the same time there were legitimate reasons – and here, as with everything else he said, it was all grounded in many references to precedents and past judicial thinking – to take up cases where the injustive causes such shock to the Constitution that it was the Court’s duty to intervene.

After Mr. Nariman it was Mr.Grover’s turn and he spoke about the problems that the law causes for HIV/AIDS outreach work, which was why an organisation like Naz that was engaged in this field filed the petition. He looked at the development of the law from its first declaration in the Indian Penal Code, at which time its scope was perhaps quite narrow, but then how its scope was expanded via subsequent judgments to encompass nearly all kinds of mutually consensual sex for non-procreative purposes, and the problems this poses for all people of alternative sexuality.

Mr. Grover did come in for quite a bit of questioning here. The judges kept probing the link between gay men, the law and HIV and this was also the context in which, as has been reported in the papers, they kept asking for numbers of gay men, numbers of HIV postive people, number of HIV positive gay men, and so on. On one level this is a routine request, and yet as Mr. Grover tried to explain its a really hard figure to give precisely because the effect of the law is to drive the people who fall in these categories underground and beyond the reach of surveys.

Mr.Grover spoke till Wednesday afternoon and then handed on to Mr.Shyam Divan, the counsel for Voices Against 377, a coalition of human rights groups and individuals concerned with 377 who had come together to fight it. Mr.Divan started by reading through the list of the groups concerned, emphasising that they included groups concerned with child rights, to counter the claims of the Delhi Commission on Child Welfare, and also on womens rights, which emphasised that this was a broad based coalition, beyond just lgbt groups.

Mr.Divan continued through Thursday and will speak again when the case is taken up once more next Tuesday. I’ll just conclude this by giving an idea of one of the several dramatic and really moving moments in the hearings. It may sound excessively dramatic when you read it, but in the confined of the Court, towards the end of a long post lunch session, and framed, as all the counsel do, with much reading and citation from past cases, it really has impact.

In this case Mr.Divan was referring to the question one of the judges asked Mr.Malhotra, the Additional Solicitor General who made a misguided and entirely independent intervention against us at the start of the case. He also refers to a discussion during Mr.Grover’s arguments when the judges asked how one of their very basic questions, which was if the law forced gay people to be invisible they could claim to suffer discrimination, because didn’t you have to be visible to be discriminated against?

Mr.Divan: “Your Lordship asked Mr.Malhotra if he knew any gay people, and I would like to answer that question for myself. Yes, I do know gay people. I have known them since college. They are people in my immediate circle. They are part of my family and my extended family. And they have all feared at times if they have the freedom to express their sexuality. They have gone through trauma because of this.

“Are they invisible? Yes and no – and why no? Because our Constitution allows the flourishing of our personalities in relationships and it is at that point when gay people meet and cohabit and have a relationship that invisibility disappears. If a man lives openly with another man that is when the invisibility disappears and they can be discriminated against, despite the fact that our Constitution allows us all to develop relationships.

“It is all a question of identity and your Lordships have asked questions about identity. Who am I? It is a basic question that we ask ourselves, that we are asked by others and that the government asks on the passport form and the Aadhar application when it provides options of Male, Female and Other.”

The Bench: “Who am I is a very big question. We all ask ourselves all the time ‘Who am I?'”

Mr. Divan: “And that is the point my Lord. When I look at myself in the mirror each day and ask ‘Who am I?’ do I see a criminal?”

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 am 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 Court, 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 broad base 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, focusing 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 Center 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 diarrhea 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 promote 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. -The Telegraph, Calcutta

The day’s hearings began with the government trying to rectify the confusion created by Additional Solicitor General (ASG) Malhotra’s unwarranted intervention. Trying to frame this as neutrally as possible, another ASG, Mohan Jain, said that the Ministries of Home, Law & Justice and Health were concerned with the judgment, but felt there was no legal error in it.

This did not go down well with the Bench which was evidently highly displeased at how the government had wasted its time due to its lack of clarity. They tore into poor Mr.Jain, questioning his standing:
Bench: “Are you party through the Govt. of India? Are you party through the Ministry of Health? In what capacity are you a part? Can you change your stand from court to court? Can pleading in the first court change in the appellate court? Under what provision can arguments in pleading be changed? You are stating things that are not part of our papers.”

Mr.Jain tried to repeat his point about the Ministries feeling the judgment had no error, but the Bench retorted: “It is not a decision by the Government. It is only a group of Ministers. If it is said by the Council of Ministers, then it is a decision of the Govt.”

Mr.Jain tried to make the point that there had been two different government viewpoints in the Delhi High Court, from the Ministries of Home and Health, but this had come in for sharp comments from the Bench then, and it did again. The Bench asked how the government could change its stand from court to court, and whether its arguments in the first court (Delhi High Court in this case) could change in the appellate court (Supreme Court)?

The Bench then pretty much ordered the government to take a final position: “We are hearing the constitutional validity of this law – ultra vires/ intra vires? It is a straight question. You file an affidavit taking your stand. It has to be an official stand. If you want to say Sec. 377 is partly/ wholly unconstitutional, say so. If you want to say that the court can say whatever it wants to say – you don’t need to say that (everyone laughs). The only question is whether 377 is valid. We will be confined to 377 and not go beyond.”

Mr.Jain tried to bring the focus on the HIV/AIDS arguments for reading down 377, on how the law made it hard to reach out to the MSM population. The Bench however was in no mood to accept just statements from the government, but wanted data, affidavits.

Bench: “The judgment was in 2009. After that f the Govt. wanted to stop the spread of AIDS, they could have educated the public or done something else about it. It wouldn’t have taken much time. It is over 2 years now….to be precise 2 years 6 months….you should have filed an affidavit. Sorry, we don’t like to work like this. You cannot have a hidden agenda. Your papers should be available to the other side also and they should be able to respond. Whatever paper you have must be filed…”

Mr.Jain, really struggling now, reiterated that the Government’s position was that there was no error in the judgment, but the Bench wanted something more precise: “Is it violative of Art. 14 [Equality before the law], 15 [Prevention of Discrimination], 19 [Freedom of Speech], 21 [Protection of life and personal liberty]?”

Mr.Jain started to refer to what the government was saying, but the Bench interrupted again: “Which Govt?”

Mr.Jain: “Union of India.”

Bench: “There are 3 Union of Indias. Which one is saying this?”

Mr.Jain: “Ministry of Law and Justice…”

Bench: “No..no which Union of India is saying this? (judges laughing). How many Union of Indias are there? 4? So out of 4 how many are part of this? I can’t see all 4 in it, so how many are part of this? I can understand Health etc…but which Union of India has argued?”

Mr Jain came out with a definite date, saying that on 28 July 2009, the Ministry of Health and Law and Justice took a joint decision, and he went on to talk about how MSM were a high risk group for HIV, how they are often married and pass on HIV to them…

Bench: “The judgment does not have anything to do with MSM, HIV – it is about adults. Art. 14, 15, 19, 21…which of these in itself address HIV?”

Mr.Jain: “There are certain high risk groups because of their risky sexual behavior like MSM, female sex workers, injecting drug users…all are at high risk of getting HIV/ AIDS…NACO says that HIV is higher amongst them. HIV amongst general population is much less. The estimated number of MSM in 2009 was 12.4 lakhs…since MSM also marry women, they pass it on to women…it is a risky behavior..also because of the hidden nature of these groups.”

But the Bench is really not interested in the HIV aspect at the moment. It asks a perfunctory question about the institutional status of NACO, but also says firmly: “We are not deciding HIV/ AIDS. We are deciding whether 377 of IPC in HC judgment is ultra vires or not.”

Clearly this is all going nowhere, so Mr.Jain says for one last time that the government of India does not oppose the judgment, and then sits down. We are now back with our opponents – next up is Mr.H.P.Sharma, counsel for B.P.Singhal, one of our most long standing opponents, who has been there since the Delhi High Court.

Mr.Sharma quickly makes clear that his argument will about what is natural and unnatural: “Under the law there is something natural and something unnatural. In different statutes these words come many times… murder is an unnatural violence and so is homicide. Natural Justice – nature requires man to speak the truth. Justice is part of nature. It is natural. Injustice is unnatural. Unnatural offence is considered unnatural in a very popular sense. Fundamental Rights (FR) cannot be stretched too far. Court has to also look at Fundamental Duties (FD) and Directive Principles (DP). If someone’s sexual orientation affects someone else’s life, then it conflicts with Fundamental Rights. What materials should the court look at to see if it is ultra vires or not? Court should look at FR, FD and DP… ”

[Side note: Fundamental Rights don’t need explanation, and most of us will be familiar with the Directive Principles of the Indian Constitution from our civics classes, but the Fundamental Duties may be less familiar. And there is good reason for this – they are in the Constitution, but are one of its more ambiguous parts. For one, they were not originally part of the Constitution but were added during the Emergency through the 42nd Amendment. After the Emergency many parts of the 42nd Amendment were changed, but the Duties were left alone since they are (a) mostly stuff everyone can agree on, and (b) non-justiciable, so are aspirations, rather than legal obligations, unless specifically made so. An example, I guess, is the duty to respect national symbols which is the reason why, in Mumbai, we have to get up for the National Anthem in theatres – but after the state government made it compulsory. The point is that nowhere in the Fundamental Duties can I see anything that would support criminalising homosexuals – in fact, some like respecting our common brotherhood, preserving our composite culture and promoting a scientific temperament would suggest the opposite. For more: Fundamental Rights, Directive Principles and Fundamental Duties of India]

Mr.Sharma isn’t just concerned with natural/unnatural, but also takes on the Right to Privacy argument. This, he says, is limited: “Right to Privacy will not be available if the act is not a lawful act – adultery, gambling etc. If a person does not commit breach of law, he can enjoy privacy. The crux of the matter is, can an illegal act be made legal if it violates Right to Privacy? Certainly not.”

Someone was bound to bring in religious texts sooner or later, and Mr.Sharma now does so, referring to the Manusmriti, the Bible and the Koran. This gets a reaction from the Bench: “Were these – Manusmriti, the Bible and the Koran – also placed before the HC?”

Mr.Sharma replies no, and wants to go on to talk about society, but the Bench isn’t leaving him: “Who has authored Manusmriti?”

Mr.Sharma: “This is the original text. I have downloaded it from the internet. Anything downloaded from the internet is admissible as evidence…”

Bench: “So this is by which author? If the original is available with you, please give, we will consider…(says with a smile).”

Mr.Sharma just keeps talking, about Gandhi talking about unnatural vice in 1929. I guess he hasn’t read the Lelyveld book! More seriously, the problem with quoting Gandhi as disapproving of homosexuality is that he didn’t much approve of heterosexuality either. The Bench makes a similar point by noting that Gandhi disapproved of many things, including alcohol, but Mr.Sharma keeps going, not listening the the Bench, until finally the Bench remarks: “You are paid to appear in court…are you also paid to hear?”

Mr.Sharma ploughs on regardless: “There is something called unnatural and immoral. Irrational is immoral and therefore illogical. Society is ruled by logic. Society is ruled by logic. It cannot allow perverted act of sex between 2 parties – this particular kind of sex is perverted sex. This is like an academic exercise where we are arguing the validity of a small part and completely ignoring certain other important aspects…” (Finally Mr.Sharma is halted by the lunch break is called and the Bench warns him and all the other petitioners that they will only get half an hour to argue in the afternoon.)

After lunch, knowing he doesn’t have much time, Mr.Sharma crams together a whole bunch of arguments: “There is nothing like sexual minority under the constitution. On the mere apprehension that rights can be violated, the court cannot be moved… Incest marriage is also carried out with consent, but it is unnatural and so criminalised… Just saying that the police have special powers because of 377 is not right. Under IPC unnatural is not only in 377. It is also in Sec 100 (fourthly) where it talks about unnatural lust. In Sec 372, illicit intercourse is also included. Law has taken care of what is natural and what is unnatural…what a man of ordinary prudence can do and cannot do.”

Sticking to their time, Mr.Sharma is asked to finish and then Mr.Praveen Agarwal, the counsel for Suresh Koushal is called. Since he represents the first person to file an appeal in the Supreme Court he had been the first counsel called on Day One, but he seemed so ill-prepared then that the Bench told him to prepare his arguments and speak later, which he now does. And he begins by trying to be clever and asks what locus standi (what involvement or right to be involved) Naz had to file the case, since it was a trust and only an individual could…. but he’s cut short by the Bench: “Issue of locus should have been examined in the HC…not here.”

(In fact, as the Bench may be aware, this issue of locus was dealt with years back when an earlier Bench of the Delhi High Court threw out the case on this matter of locus standi, at which point we had appealed it to the Supreme Court on the narrow issue of whether an organisation like Naz could have locus standi in a matter of public importance like this and the SC then had agreed and sent the case back to the Delhi High Court where, eventually, we got our great verdict. So in a way this case had already been in the SC once, even if only on a technical point of law).

Thwarted on that, Mr.Agarwal comes down to regular arguments and it is the ‘reasonable restrictions card that he is playing: “All Fundamental Rights operate in a square of reasonable restrictions. There is censorship in case of Freedom of Speech and Expression. Playing something at a high volume at night might trouble another person, so a restriction on that is within the purview of reasonable restrictions. What is covered by 377 is a social evil, therefore it can be curbed by reasonable restriction. High percentage of AIDS amongst homosexuals shows that it is a social evil…and so the restriction on it is reasonable… What is morality? In Bachhan Singh v State of Punjab, the court talks about prevailing standards of human decency…”

Bench: “Morality has different dimensions, different meanings. Even brothers living in the same house may have different standards of morality…Perception of morality pertaining to an act depends on the kind of society…what wasn’t moral before, maybe moral today. Perceptions are fast changing. Purdah system is moral in certain communities, and moral in some…even among certain Hindu communities…like in Rajasthan… there is the system of ghunghat Some will say that it is part of culture, some people will say why can’t those living in ghunghat have their basic rights?”

Mr.Agarwal, perhaps seeing the ghunghat as a neat way to drive a difference between the morality of ‘real India’ as opposed to the depraved cities, suggests that the court will not just consider morality in the metros, but the whole of India. The Bench, however, is discouraging: “Morality differs from person to person…profession to profession…court is not here to strike down a provision. There is a lot of misconception even among learned people about the role of the SC…we can only approve or disapprove the position taken by the HC…”

Professor Ruth Vanita has noted in these lists how the discussion only seems to have focused on queer men, not women and for a (very brief) moment the discussion opens up. Mr.Agarwal notes that 377 does not create distinction in gender and that the section says “whoever “so it can be male, female, all…”

The Bench: “We are asking for assistance to know if it talks of any class of persons? Does it say anything about the offenders gender? What is against the order of nature?”

Mr.Agarwal tries to answer by using the Bench’s own example of surrogate mothers as something that might be natural, but against the order of nature, but I think that example was used to suggest how things were changing, and the Bench cautions him: “Don’t go by our observations…You don’t know where you go…(everyone laughs). Don’t say what the media reports say we have said…”

Mr.Agarwal: “Even if a man is having sex with a woman, 377 may be attracted…it includes whatever is commonly accepted by society as going against the order of nature…”

The Bench: “Many acts natural for us maybe unnatural for others – other communities, countries, religions…but it may not be against the order of nature…”

The Bench: “On the issue of consumption of liquor, for eg, people’s opinion will be divided…if you have statistics from a scientific survey…you can use it to assist us…or else leave it…we have asked Malhotra how many HIV+ people are identified as gays, homosexuals, MSM…NACO has provided some statistics….”

Mr.Agarwal tries suggesting that 377 prevents the spread of AIDS, and that if 377 goes then who knows what can go tomorrow: “If 377 is struck down…Immoral Traffic Prevention Act (ITPA) may also be struck down…privacy will also enter there…today it is 377… tomorrow it will be ITPA…the concept of morality has to go then…”

But the Bench, having told Mr.Jain that they don’t want unsupported arguments on HIV, doesn’t give Mr.Agarwal much room here either, and he’s asked to finish. With just a few minutes to go, the next to be called is Mr.Sushil Kuman Jain, the counsel for Krantikari Manuvadi Morcha (This organisation is best known for putting Dara Singh, the man who is in jail in Orissa for allegedly burning the Australian missionary Graham Staines and his two small kids to death, up for election as their candidate in different elections, most recently in UP.)

Mr.Jain has just enough time to suggest that this case shouldn’t be here at all:  “It is for the Parliament to decide what is moral and what is immoral. Consent cannot be incorporated in a section when it is not provided there…wherever the consent is valid, the statute includes it. Some acts the society takes care of and penalizes it – individuals not living within the discipline of the society is to be punished. To check anarchy, society takes care of a situation.”

Time is up, and the session is called to a close, but not before the Bench directs the ASG to file an affidavit clarifying the Ministries position in 3 days.

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 senior most 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 hear.

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 see 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 again? 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 senior-most 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 impact 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, eloquent 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 fantasized, 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.

Trying to understand purely from these minutes which were received from our sources in court – to who the credit for taking them down and writing them up in a few hours must really go, while Iam just doing postal duties – I am guessing that when the Bench unexpectedly asked Mr.Malhotra for the government’ss response, Mr.Malhotra might have been caught short since as far as we know, the government wasn’t planning on intervening in this case.

But since Mr.Malhotra had been one of the opposing counsel in the Delhi High Court case he could happily trot out his arguments from there, and this is what you are hearing more than 20 years later. The fact that his arguments are outdated and often contradictory doesn’t seem to stop him saying them. Since then the Naz judgment has taken place, Pride marches have happened, gay businesses and parties have come up and more and more people are coming out but Mr.Malhotra has not changed his arguments.

As we now know, his remarks were disowned by the Ministry of Home Affairs (MHA) which leaves a lot of what happened today in limbo. The next hearing will be next Tuesday and we will get a sense then then if the Bench will ask for more information, if it will stand by Mr,Malhotra, despite the MHA not backing him, if it will ask for more actual cases and so on.

But while all this was going on in court, the media outside went into a frenzy, which panicked a lot of people in the community, many of who put the news on FB and twitter, further spreading the news;. All this can’t really be stopped entirely, but it does show how fast information and misinformation can spread. Again, as I said earlier, this puts a special responsibility on everyone who uses social media a lot to be careful what they put up.

Notes for 23.02.12- Naz Foundation case in Supreme Court Bench- Justice Singhvi and Justice Mukopadhyay

Mr. Sharan continued his arguments. The judges asked Mr Sharan how many countries had laws like 377. He said that there were 76 countries of which 7 were punishable with death. The Bench said that it was up to their legislatures to decide. Mr Sharan then argued that the right to privacy was not absolute, and that for the right to privacy to be invoked there must be a violation by a

statute that was direct, and not remote. He said that section 377 was not intended to invade privacy, and did not breach privacy directly. He argued that neither the dignity nor privacy of the individual was affected by the provision, and therefore a challenge under Art 21 would fail.

Mr. Sharan argued that there was a presumption of the constitutionality of the law, and that Indian case law had held that it was open to a legislature to make laws directed against a class. If the classification is intelligible and there is a nexus between the object of the law and classification, then that classification has been upheld, he said.

Mr.Sharan argued that there was no class targeted by 377, that no classification had been made, and therefore the finding of the High Court that this law offended Art 14 as it targets a particular community known as homosexuals or gays was without any basis. He argued that there was no empirical data to show that there is a homosexual community and that there was nothing to show that they constitute a class.

The Bench asked if there was any material placed by the petitioners before the High Court. Mr.Sharan said that there was statement placed before the court that there were 25 lakh MSM persons in India but no evidence to show this

“Why do we talk of community? There is no commune. They are part of a general community. The only difference is that the sexual preference of particular individuals is different. They are part of society”, said the Bench.

The Bench said, “There was a peculiar incident in Punjab. Three ladies were frequent pickpockets. One Robin Hood SP got hold of them and got the persons engraved with tattoos on their forehead to mark them as pickpockets. They had to move in society with all that engraved on their foreheads. The courts then found a solution through plastic surgery”

“Except one solitary case of harassment under 377 there is no other evidence”, said Mr.Sharan.

“It is quite possible that some people in society could harass these people. e.g in Mangalore. Two years ago, there was an incident on Valentine’s Day”, said Justice Singhvi.

Mr Sharan said, “There is no group, no community ..”

“It is individual behaviour. Different persons in society may be varying”, said the Bench.

“The basic substance of the argument is that there is a community of homosexuals and the law targets them”, said Mr.Sharan.

Referring to the High Court’s ruling on Article 15 of the Constitution, Mr.Sharan said,”The judges have a great penchant for citing foreign judgments, using foreign examples, and foreign concepts when there is already a huge mass of case law available on every issue in our country”. Referring to a 1973 Supreme Court decision, Mr.Sharan quoted the court saying that there was already a large volume of material on capital punishment in the west, and that

the court had grave doubts as to the valency of the western experience in our country where the social conditions are different.

Mr.Sharan argued that there was nothing to show that the law offended Art 15(2) of the Constitution. He said that there were no cases before the court with respect to access to public space. He said that there was no general problem that persons of certain sexual orientation should not enter a cinema hall or any public space.

“Article 15(2), My Lord, has been re-written by the Honarable High Court”, said Mr.Sharan.

“The Honorable High Court feels that Art 15 which bans discrimination based on sex includes a ban on discrimination based on sexual orientation. That would my lord, be a case of rewriting the constitution. The words expressly used in Article 15 is confined to gender”, said Mr.Sharan.

Mr.Sharan cited D.D.Basu, an Indian jurist, to say that the Indian Constitution specifically bans discrimination on the basis of sex.˜The fact that Art 15(3) mentions that special provisions can be made in favour of women, means that the provision is restricted to gender and not to sexual orientation” he said.

Mr.Sharan argued that the right to privacy was not uncontrolled and to say that it was absolute as far as consenting acts between adults were concerned was completely fallacious.

Mr.Sharan argued that the High Court mentions constitutional morality as opposed to public morality. He said the High Court was not correct and that there was a curb on morality in Arts 19(2), 25(1) and 26. He cited a 1998 Supreme Court judgment that said that the right to privacy could be curtailed on moral grounds.

“I have made my submissions on legal grounds and my learned friends here will take on other issues”, said Mr.Sharan referring to the lawyers for the other petitioners.

The Bench then asked the Additional Solicitor General P.P.Malhotra, representing the Union Home Ministry to begin his submissions.

Mr.Sharma, counsel for Mr.B.P. Singhal interjected saying he represented one of the parties in the High Court. He said his arguments were not religious, and that he had done research on every aspect of the term “order of nature”.

Mr.P.P.Malhotra, Additional Solicitor General, representing the Union Home Ministry began his arguments. He guided the judges through large parts of the Delhi High Court’s judgment – paras 11, 12, 13 and 14. He read from the Ministry of Home’s affidavit filed in the High Court where the Home Ministry had opposed the decriminalization of homosexuality as it would open the

floodgates of delinquent behaviour. The Home Ministry had then argued that 377 was needed as there was a lacuna in the rape law, and that the section was used to address the abuse of children.

Mr.Malhotra referred to the 42nd Law Commission Report that had recommended retaining s.377 on the basis that societal disapproval was strong enough to retain the law.

“The High Court relied on South African law where moral values and culture are different and the constitution is different”, said Mr.Malhotra

“Who will ultimately decide what is moral and immoral?”, asked the Bench.

“The court will”, replied Mr Malhotra.

“No” said the Bench.

“Why has the legislature not considered this as yet?”, asked the Bench.

“The Law Commission has said don’t decriminalize. How can one tolerate this? It is highly immoral”, said Mr.Malhotra.

“What is immoral?” asked the Bench.

Mr.Malhotra said,”Nature has made man and woman. His penis can be inserted into female organ because it is constructed for that. It is natural. Now if it is put in the back of a man where human waste goes out, the chances of spreading disease is high. There are UN studies to show this” he said.

Mr.Malhotra began talking about how the public in the U.S. and U.K. had shown increasing tolerance to this new sexual behaviour.

“Laws of other countries may not be of great help. If we start making research on that count, there will be some countries that have and some that don’t”, said the Bench.

“Is there a part of the country where this is not applicable?” asked the Bench.

“What about J&K, they have a separate code and the section has not been declared ultra vires by the Delhi High Court.”

But the Bench went on to say it was best to come to arguments and that Mr.Sharan had read the judgment in great detail yesterday. “If every lawyer does that, we will remember every line of

the judgment,” said the Bench.

Mr.Malhotra talked of statistics related to HIV prevalence among MSM populations.

“How many persons are suffering from HIV/AIDS in the country and how many of them are MSM?” asked the Bench.

“HIV prevalence among the general population is less than 1% while among MSMs it is 6 %,” said Mr.Malhotra

“This was stated in 2005. What is the position today?” asked the Bench. Doing a rough calculation the Bench said they were talking of a much larger figure of non-homosexuals suffering from HIV/AIDS.

“I will show that HIV/AIDS is the cause of homosexuality,” said Mr Malhotra.

“That is not necessary. Ask your department to collect appropriate figures. HIV/AIDS may have nothing to do with homosexuality,” said the Bench.

“Why call it MSM? Why not transgenders? If you go for a particular act, that is with transgenders also. Why confine particular acts to MSM? What you are saying is not limited to a class of persons. Why should take figures of MSM only?” asked the Bench.

“Who goes and complains? Find out from appropriate sources how many female children become victims of HIV/AIDS because of sexual abuse. This has nothing to do with homosexuality. Andhra Pradesh, Karnataka and Maharashtra are states where you will find children suffering from HIV/AIDS. This has nothing to do with homosexuality, transgenderism and lesbianism. They are simply victims of sexual abuse by monsters in the form of humans”, said the Bench.

“The modus operandi is that one girl is sold by the family because of poverty, and suffers

from sexual abuse. She is brainwashed and sent to the village where it will attract others who see her as relatively affluent. Human trafficking is the main source of HIV/AIDS, yet the affidavit places much emphasis on 8 % of MSM.”

Mr.Malhotra then proceeded to read from his written arguments. He emphasized that the Delhi High Court should not have relied so heavily on foreign judgments. Referring to a U.S. judgment that the court had cited, He said,”U.S. society is different. Children at 13 and 14, even girls, leave their homes.”

“I have counted at least 31 foreign judgments that the High Court cites,” said Mr.Malhotra.

Mr.Malhotra continued to read from his written submissions.

“Mr. Malhotra, by the way, nothing to do with the case, but do you know any person who is homosexual,”asked the Bench.

“Nobody my lord,” replied Mr.Malhotra.

“They are avoiding our court,” joked the Bench.”You don’t know anybody?”

“I must confess my ignorance about modern society,” said Mr Malhotra.

“We appreciate your ignorance,” joked the Bench.

“Those arguing think they belong to a particular class. There is no classification as such,” said the Bench.

“Every society has a different way of life, different standards, different thoughts. In our society this is not proper. This kind of conduct in the open is not permissible”, said Mr.Malhotra.

“Nobody has said that it cannot be in the open,” said the Bench.

“Who is aggrieved?,” asked Mr.Malhotra. “Ordinarily, all sexual acts are done in private and with consent. We are proceeding on hypothesis and assumption. If you do it in public, even if they are married, they may face prosecution under other provisions, even if they are adults and consulting.”

“I don’t know why this petition was filed at all,” said Mr.Malhotra.

“To give you an opportunity to argue the case,” joked the Bench.

“The issue of sex in Indian society has so far remained a private matter,” said the Bench.

“For the last two days the arguments have gone on in public, and we have seen that the temperature has also gone up,” joked the Bench.

Mr.Malhotra argued that global trends were irrelevant. They are adopting a story of sexual orientation that is not relevant, he said.

Referring to the Home Ministry’s affidavit in the High Court, Mr Malhotrasaid, “If one of them is suffering, the recipient is the person who is doing it, it will be transmitted to another. That is the question of public health. MSM are high risk groups, if this is legalized it will lead to a public health issue,” he said.

Mr.Malhotra argued that the High Court’s reading of the NACO affidavit was completely wrong. “Where is the fear of law enforcement?” he asked

Mr.Malhotra argued that unprotected anal sex among MSM was a significant factor of HIV/AIDS transmission.

Referring to the argument of police harassment leading to obstructing HIV/AIDS prevention efforts, Mr.Malhotra said, “Hardship is no ground to invalidate a law. Law cannot please everybody. Referring to the High Court’s ruling that popular morality or public disapproval not being a ground for criminalization, Mr.Malhotra said, “Law is based on what popular morality says. What is the view of the public, the legislature decided,” he said.

Mr.Malhotra referred to the 172nd Law Commission report which had recommended sections 375 and 376 (rape) had been changed to gender neutral laws. “The Delhi High Court does not say this. The court half reads the report,” said Mr.Malhotra

The Bench said that sections 375, 376, 376A referred to different provisions on consent. “Who has decided that with or without consent in the provision?. Now we have to read ˜without consent and adult man/adult woman into 377,” he said. “Post the High Court judgment we have to read the section in that fashion,” he said.

“Who can do this rewriting? The power lies with Parliament”, said the Bench.

Mr.Malhotra referred to the para 125 of the Naz judgment in which the High Court explains the role of the judiciary and the rationale behind intervening to read down the law.

“The court has reiterated what is known,” said the Bench. “At times the court does this.”

The Bench referred to the High Court’s distinction between constitutional morality and public morality. “Public morality is based on which morality? Constitutional morality or public morality? Is there any penal code or civil code based on constitutional morality? Does the Penal Code reflect some kind of public morality or not? Does it have a nexus with morality or not? Is there a nexus with vices or not? Has that been discussed or not? Is there a nexus

between offences in the IPC and morality in society? Otherwise an act will not become an offence” said the Bench.

Justice Singhvi asked who enacted the IPC. “You need to see when the government of the British took over power from the Company. The first act with respect to Indian territory, did it look into the morality of India or the British?”

“We continued it,” said Mr.Malhotra.

“In the context of public morality we are asking you if the law was enacted by British Parliament or a confederation of states..which morality?” asked the Bench.

“Did they move towards the position of India or towards the British public for enacting the IPC? Was there a code to punish foreigners and excepting locals? Those are questions for the purpose of looking at if public morality was there or not there,” said the Bench.

“Article 372 and Article 13 if attracted, that portion is void, otherwise the provision continues. Any provision violative of fundamental rights would be void”, said the Bench.

“One will have to come back to Article 21,” said Mr.Malhotra.

“After the enactment of the Constitution in 1950, law that is pre constitutional can be declared void. Would it be void or not? Can there be a reading clause or savings clause,” asked the Bench.

“The law has been on the stature book from 1950 to 2012. More than 60 years later now at this stage a long period of time. Society has felt that this law should be there. Government has changed” said Mr.Malhotra.

“The government changing is not relevant. The Parliament has to frame the law,” said the Bench.

“Parliament has not thought it fit to change the law,” said Mr.Malhotra.

“The 172nd Law Commission Report was in 2000. The report is available with you. The Parliament from 2000-2009 did not consider it proper to make amendments to sections 375, 376 and to delete 377,” said the Bench.

“There is nothing like a presumption that Parliament has not applied its mind to the 172nd Law Commission Report. Parliament functions in many ways that we do not know. Reports are considered by committees and debates take place. It is not easy to say that Parliament did not have the time to take time to take this up.”

“Can a court of law take into consideration these reports not accepted by Parliament to decide constitutionality?” asked the Bench.

The Bench asked “Does a law depend on a particular nature of a disease? Different types of infection will come. One today, one tomorrow. How does disease have a nexus to whether law is ultra vires or not?”

Mr.Malhotra handed over his written submissions.

“We would be more enlightened if you can give statistics carried out by the government or government appointed institutions. The rest are theoretical debates,” said the Bench.

Mr.Malhotra read out figures for various states in India of HIV prevalence among MSM community. He said that unprotected anal sex was the most important risk factor for the spread of HIV .

The Bench said, “We are not at all called upon to decide how AIDS or HIV spreads.”

“Only to show homosexuality is a major cause,” said Mr.Malhotra.

“We want to know about India”, said the Bench. “Out of the surveyed men, what percentage were surveyed? These reports are difficult to rely upon like when a survey is conducted in the metros. When a survey is carried by a TV channel, people believe this. Is there a survey conducted in all parts of the country? Do you know how many people suffer from HIV without testing. What about persons who may not have gone to hospitals? The effect of infection may start 12 years later.”

Mr.Malhotra read out figures of HIV/AIDS prevalence among the MSM community for various states in the country.

“For what purpose are you producing these figures? Are we doing research on

HIV?” asked the Bench.

“I am only saying it is one of the modes of transmission” said Mr.Malhotra.

“One of the recognised modes is simple intercourse. If one person is infected, the other person may or may not get it,” said the Bench.

“MSM try different partners, so more chances of transmission,” said Mr.Malhotra.

“HIV is transmitted because of injection, through pregnancy and sexual intercourse. Why MSM?” asked the Bench

“The petitioner claims that they are at risk. This is in response to their petition.”, said Mr.Malhotra.

Mr.Malhotra mentioned a 7 judge bench Supreme Court decision (MP Sharma v Satish Chandra). He said the power of search and seizure and the discussion on the right to privacy was analogous to the 4th Amendment in the USA and there was no justification to import it into Indian Law.

Referring to the Kharak Singh case, Mr.Malhotra said 377 was different from the UP Regulation that was struck down in the case. He said that the right to privacy is not a fundamental right granted expressly under Art 21.

Mr.Malhotra referred to the Gobind v State of MP case to say that fundamental rights can always be subject to restrictions. “Nobody’s privacy is being disturbed. Whose privacy is being disturbed?”, asked Mr.Malhotra.

The judges then referred to para 22 of the Gobind case. “What about the privacy-dignity claim, which can be denied only when a countervailing interest is shown to be superior”, asked the Bench. The judges pointed out that Gobind refers to a “compelling state interest” that has to be satisfied to curb fundamental rights on the basis of morality. They asked if the enforcement of morality was sufficient to deny fundamental rights.

“The test related to the fundamental right to privacy is that of compelling and permissible state interest. Show us that this test is satisfied,” said the Bench.

Mr.Malhotra referred to the case of Sharada v Dharampal to say that Art 21 could not be treated as an absolute right.

“You can’t say that the right to privacy is not absolute”, said the Bench.

“Can you highlight us on the morality and state interest test.”

Mr.Malhotra then referred to the restriction on the fundamental right to freedom of speech and expression, emphasizing the exception based on “decency or morality”. He referred to section 292 of the IPC (obscenity) which he said seeks to protect public decency and morality. He read from a 1965 Supreme Court judgment which talks of how contemporary standards must be taken into account an the influence of the book on those susceptible to the material must be taken into account. He said that the courts need to maintain a balance between the freedom of speech and public decency and morality.

Mr.Malhotra referred to three cases- Ramesh Yeshwant Prabhu, Fazal Rab Chaudhury, and G.K. Gopal v State of Karnataka (where the court says that perversion may result in homosexuality or the commission of rape)

Mr.Malhotra argued that a number of laws like divorce laws, the Hindu Marriage Act, section 376 of the IPC, sections 10 and 12 of the Divorce Act, the Parsi Divorce Law, the Dissolution of Muslim Marriages Act, the laws related to gambling and organ transplant would be affected if 377 is changed. He said that the Parliament must change the law if there was a need to change it.

Mr.Malhotra summarized his arguments saying that said that 377 does not affect anybody. He said that it was not necessary to declare the law unconstitutional.

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 organization 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 elicit 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)

The case was first taken up on Monday and did not come up on Tuesday because some other matters, which were presumably seen as more urgent, were listed first. I think we’re realizing that this is how the case will be heard. This bench has decided they will hear it, and they confirmed that today. But they will hear it along with other matters, which on any given day might have more priority, so the 377 case will usually be heard towards the end of the day.

In other words, this case is going to be stretched over quite a bit. With so many petitioners against us, all of whom will get their hour or two in court, and then the petitioners on our side, we are looking at a lot of court hours. So the case is on, but lets not expect anything soon, leave alone a verdict.

This may seem excruciating, and there will be plenty of uncomfortable moments in the early part when our opponents will have centre stage. We will be hearing a lot of stuff that is illogical, insulting, demeaning or just confused. But we will get our own turn, and, as one of our opponents lawyers rather aggrievedly pointed out today, all the big names are on our side. So the arguments will start sounding better in time.

We must also be careful not to start reading too much into what the judges say or speculating on what they are thinking. It is really hard not to do so, since I think speculating on the minds of judges is what a large part of the legal profession obsesses about, and this is passed on to us. But I feel there is little point doing this because (a) once the Bench is fixed there is nothing we can do about it, and (b) it undermines what judges are there to do, which is hear with an open mind and decide as arguments are presented to them.

And in today’s arguments I think you can see this. This Bench is not pretending to be very knowledgeable about homosexuality, but they are willing to discuss it, and this may involve discussing it in very basic ways that seem uncomfortable and naïve to many of us, but this is what they are meant to do. This Bench seems to me to be feeling their way through what they are realizing is a complex and loaded issue, but which they have decided to go ahead with.

OK, enough bhashan from me and I won’t be doing this on a regular basis. I’ll try and post basic summaries, as I get them from sources, of what happened in the day’s arguments. But I just want to make a general caution about reading too much into what is being said, or over-reacting to any particular argument. This is going to be a long drawn out process, with lots of ups and downs, and we should just be prepared for that.

Notes for Supreme Court hearings on appeals against Naz Foundation case on 15.02.12. The Bench consists of Justices Singhvi and Mukhopadhyay

The day started with counsel for Voices Against 377 raising the preliminary argument that private individuals could not challenge the High Court’s declaration, but the Bench said they would heart these arguments later. The petitioners against the judgment are clearly going to be heard first.

Praveen Agarwal, the counsel for Suresh Koushal continued with his arguments. From what I gather, these simply involved quoting from large parts of the judgment and going over basic details, including the fact that the Ministries of Health and Home Affairs has given opposing affidavits in the Delhi High Court, with Health saying that retaining 377 comes in the way of their efforts (for HIV/AIDS education).

There was an interesting moment where the Bench asked Mr. Agarwal on what his client did to which he replied that he was a social spirited citizen and had retired and that he earned money through astrology. The Bench replied that this was a broad term and that almost all human beings were social workers. He asked the lawyer if his client predicted the future of people and said that usually astrologers did not know their own fate. He remarked that there was nothing certain in life except that one has to go back from where one comes. (I am getting the feeling that the Bench is not overly impressed with Mr.Koushal’s profession!)

Mr.Aggarwal continued going over all the reasons why the Delhi High Court decided that the homosexuality should not be criminalized between consenting adults, including references to judgments that touch on privacy issues, HIV/AIDS issues, WHO and APA Guidelines showing almost unanimous medical and psychiatric opinion that homosexuality was not a mental disease, the 172nd Law Commission Report which recommended the deletion of s.377. He further stated that the HC while dealing with Article 14 of the Constitution concluded that there was no nexus between section 377 and the purpose of the section, which was to protect the morals of children and women.

Mr Agarwal continued in this vein for a while, and judging from this basic report I am wondering which side he is appearing for since he seems to be restating all the arguments in our favour. But finally he came to his point which seems essentially to say that all this is very well, but the rights conferred under Art 21 which included the right to privacy could be curtailed for the general public good. His basic point seemed to be that we should be discussing what were the reasonable restrictions to be allowed on this issue, and whether s.377 fell under them. Not very surprisingly perhaps the Bench finally asked Mr.Agarwal to take some more time to frame his arguments properly.

The Bench decided around here to get a bit more proactive in asking for information. It asked the petitioner – `what is 377? Does it take care of homosexuality?’ What are the subjects therein? In one case it could be construed as an offence, in others it may not. Is it justified to strike it down? The Bench asked Mr Agarwal to read out the section and explain which portion of the law was read down as ultra vires.

The Bench then decided to call on another lawyer for the petitioners. I am told that the best known among them is Mr Sharan, the counsel for the Delhi Child Welfare Committee to argue. This is, in a way, not a surprise, since the Delhi Child Welfare Committee comes from one of our most determined and long term opponents and was always one of the more serious petitions.

The Bench asked Mr Sharan whether carnal intercourse could be considered unnatural and if a person who showed that his acts were natural could escape from being prosecuted under the section. When the Bench noted that in 1860 (when the Indian Penal Code was formulated) medical science did not talk of homosexuality, Mr Sharan replied that it was a discovery, not an invention, and that this was like asking a young boy how he survived before oxygen was discovered.

The Bench asked Mr. Sharan what the meaning of “against the order of nature” was. Mr Sharan replied that nature recognised only carnal intercourse between man and woman and did not recognize carnal intercourse between men and men, women and women, and with animals. The Bench wanted to know why animals were covered under this section and Mr Sharan replied that bestiality, homosexuality and lesbianism were all considered unnatural.

The Bench, again seeming to trying to get to the basics in the case, asked Mr Sharan what the meaning of homosexuality was. Mr. Sharan replied that it was sex between two men. The Bench asked if carnal referred to something specific, and wanted case law on this. Mr. Sharan said that as far as the opinion of society was concerned there was no doubt that homosexuality was against nature. The Bench asked `what is carnal intercourse? What is unnatural?’

The Bench wanted to know whether carnal intercourse had anything to do with procreation and non-procreation. Mr Sharan replied that it would include both procreation and non procreation. Mr.Sharan was going to refer to the dictionary meaning of carnal but the Bench said they wanted the legal meaning. The Bench pointed out that there were activities even amongst gays that might or might not attract 377. (I am not entirely sure if what is meant here is non-consensual activity, which would still be covered by 377, or if a more general point is being made that allowing consensual same-sex activities does not mean allowing absolutely any kind of such activities). The Bench noted that there was no discussion in the HC on what constitutes carnal intercourse.

The Bench continued to press Mr Sharan on the exact meaning of the HC verdict, and what relief it gave. The Bench said that they would properly analyse 377 and decide in the modern context to what extent it can be treated as against the constitution. The Bench asked for more information on 377 (they are surely going to get it during these hearings!)

The Bench then asked Mr Sharan to counsel his colleagues and then argue. Does this again show some doubt about the quality of the petitioners arguments? Mr Sharan then noted, in what seems a rather aggrieved way, that this was one of the rare instances where all the legal luminaries were on the other side. He said that he faced more interference from his side than the other side. What can this mean? Is he also annoyed by some of the people he’s with! Perhaps to cheer him up, the Bench said that Mr Sharan’s side were the legal luminaries of the future, and pointed him back to the case by saying that it wanted to hear more about the ingredients of section 377.

Mr Sharan then went back into action by arguing, as Mr.Aggarwal had done before, that basic rights could be subject to procedures prescribed by law. This is clearly going to be a major plank of our opponents, essentially saying that fundamental rights are fine, etc, but there are limits and these limits can be set by law.

The Bench, going back to examining the wording of s.377 asked who can tell what the `order of nature was’. Mr.Sharan replied that it had acquired a traditional meaning, but the Bench wasn’t having this vague answer and asked him to put down the meaning from Indian and foreign case law.

The Bench then brought up what is really one of the crucial points in this case. Whatever were the reasons for the law being framed in the mid 19th century, we are now in the 21st century and things have changed so perhaps the law should do so too. The Bench noted that the meaning of words have never been constant. Just in independent India we have traversed a period of 60 years and even constitutional interpretations have changed. But Mr.Sharan was not having this. He said flatly that the meaning of `natural’ was something that would not change, and this again is the crux of many homophobes arguments.

The Bench was skeptical about this, pointing out that there were test tube babies and surrogate mothers, so how would these fit terms like `order of nature’, `natural’ and `carnal intercourse’? And that really is the question that homophobes duck. They want to keep the matter focused on the unnatural gays, but basic science shows that nature can hardly be pinned down in such clear ways and their arguments have to be taken against a larger picture, which may show them to be quite weak. Still, Mr.Sharan doggedly stuck to insisting that `order of nature’ is something that is immutable and does not change with time.

Time was almost up then. The Bench then asked the parties how long they would take for arguments, but seems to have realized that this could take time. The Bench said that all parties that came to court would be given a chance to be heard and that they would hear the matter, as much as possible, on a continuous basis. The matter has been listed for Thursday, Feb 16, 2012.