When misreading becomes law

When misreading becomes law: the Victorian-era IPC created the legal category of 'unnatural offences' - to read this article in the Indian Express dated 12.12.2013, click on the following link:

http://epaper.indianexpress.com/c/2055087

Justice denied: by upholding section 377, the court has undermined constitutional values

Justice denied: by upholding section 377, the court has undermined constitutional values - to read this article in the Indian Express dated 12.12.2013, click on the following link:

http://epaper.indianexpress.com/c/2055050

SC Makes Homosexuality A Crime Again

SC Makes Homosexuality A Crime Again

Overturns Historic Delhi HC Verdict, Activists Break Down In Court, Shock & Dismay Across Country Upholds Section 377 Of IPC, Which Prescribes Jail Up To Life

Dhananjay Mahapatra TNN [Times of India dated 12.12.2013]

New Delhi: The Supreme Court on Wednesday dealt a cruel blow to lakhs of homosexuals, many of whom had started living together after the Delhi high court decriminalized same-sex relationships four years ago, by making it a crime again, even if it is consensual and between adults in private. The ‘crime’ will attract a maximum punishment of life imprisonment. 
    The bench of Justices G S Singhvi and S J Mukhopadhaya reversed the Delhi high court’s 2009 verdict and held that the 150-year -old Section 377 criminalizing gay sex, “does not suffer from the vice of unconstitutionality”. The SC judgment will turn the clock back, and is being viewed in India and globally as retrograde. The possibility of police harassment of homosexuals can no longer be ruled out. 
    The bench said, “In the light of plain meaning and legislative history of the section, we hold that Section 377 IPC will apply irrespective of age and consent.” It added that the section does not discriminate against any group with a particular sexual preference, a stand diametrically opposite to that taken by the Delhi high court. 
    “It is relevant to mention here that Section 377 of the IPC does not criminalize particular people or identity or orientation. It merely identifies certain acts which, if committed, will constitute an offence. Such prohibition regulates sexual conduct regardless of gender identity and orientation,” Justice Singhvi said. 
    A crowd of gay activists, quite a few of whom were in advocate’s uniform, had waited inside a packed court room No.1 in expectation of a positive verdict. At 10.30am, Justice Singhvi, for whom it was the last day in office, sat with Chief Justice P Sathasivam (as is the tradition of honouring a judge on his last day).Three minutes later, Singhvi finished reading the concluding part of the 98-page judgment, and pronounced that the Supreme Court was overturning the Delhi high court’s verdict. Smiles disappeared. Some of the activists cried loudly. 
    However, a clarification followed. The judges said, “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the attorney general.” 
    The AG, G E Vahanvati, had argued that a group of ministers which looked into the issue relating to the constitutionality of Section 377 IPC had recommended that there was no error in the HC order. In other words, the government didn’t have a problem with the decriminalization of gaysex—buttheSCcouldtakeafinalview. 
    Vahanvati had also said, “The declaration granted by the high court may not result in the deletion of Section 377 IPC from the statute book, but a proviso (exception) would have to be added to clarify that nothing contained therein shall apply to any sexual activity between two consenting adults in private.” He had also stressed that the “court must take cognizance of the changing social values and reject the moral views prevalent in Britain in the 18th century.” 
    The apex court observed that the Law Commission of India, in its 172nd report, had recommended the deletion of Section 377 of the IPC. 
WHAT NEXT? Naz Foundation has said it’ll go for a review petition against this judgment Govt has said it will support anyone who seeks a review of the SC verdict Govt could amend Section 377, but given the logjam in Parliament, is unlikely to do so before next Lok Sabha polls Parliament has not amended law, says apex court 
    The court said though the Law Commission of India in its 172nd report recommended deletion of Section 377 and that the Centre has chosen not to challenge the Delhi high court verdict, “Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision.” Parliament has not amended the law either, it added. 
    Section 377 of IPC, enacted by British 153 years ago in 1860, terms consensual anal sex an “unnatural offence” and provides punishment equivalent to that for the offence of rape under Section 376. It even outlaws oral sex between man and woman, while holding that only penile-vaginal sex was not “against the order of nature”. 
    It says: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.” It also explains that “penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section”. Allowing the appeals against the HC verdict, filed by a host of organizations whose arguments were tinged with religionguided views, the bench upheld the constitutional validity of Section 377. 
    On July 2, 2009, the HC division bench of then Chief Justice A P Shah and Justice S Muralidhar had declared “Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21 (right to life), 14 (right to equality), and 15 (non-discrimination on grounds of sex and gender) of the Constitution.” But the SC said Naz Foundation, on whose petition the HC had given the ruling, had “miserably failed to furnish particulars of the incidents of discriminatory attitude exhibited by the state agencies towards sexual minorities and consequential denial of basic human rights to them”. 
    “While reading down Section 377, the division bench of the HC overlooked that a miniscule (sic) fraction of the country’s population constitute lesbians, gays, bisexuals or trans-genders and in the last more than 150 years less that 200 persons have been prosecuted for committing offence under Section 377 IPC and this cannot be made a sound basis for declaring the section ultra vires (violative of) the provisions of Articles 14, 15 and 21 of the Constitution,” the apex court said.

Whatever I had to say I wrote in my 2009 judgment: Justice Shah

Whatever I had to say I wrote in my 2009 judgment: Shah

TIMES OF INDIA dated 12.12.2013

New Delhi: The legal community reacted with disappointment at the Supreme Court verdict on homosexuality on Wednesday. Senior lawyers criticized the judgment, lamenting that a great opportunity provided by the Delhi HC has been lost. 
    Leading lawyer Harish Salve, in a volley of tweets, said the judgment was a huge letdown. “Such a case should never have been heard by two judges only. Article 145 of the Constitution mandates important questions of constitutional law should be heard by a bench of five judges.” He urged: “It would be a good argument in a fresh petition challenging Section 377 to argue that this precedent be ignored.” If the court is happy to examine fiscal policies, deference to law when human dignity is concerned is a turnaround in jurisprudence, he tweeted, adding: “A battle lost is not a war lost. The issue of decriminalisation should be raised over and over again until accepted — it HAS to be accepted… Today gay sex. Tomorrow atheism? Day after, refusing to wear black pants on, say, Saturdays? Nanny state? Morality can and should be the basis of all laws.” 
    Additional solicitor general Indira Jaising said the penal provision for homosexuality reflects a “medieval mindset” and raises questions as to why the bench looked to the legislature to decide on the issue when the SC reviewed so many other matters. She said, “It’s surprising the court, which does judicial review on many issues, has put the ball in the Parliament’s court to decide on homosexuality.” 
    Former attorney general Soli Sorabjee, who supported the PIL movement against section 377 IPC from the outset, termed the order retrogressive. “The Delhi HC didn’t legalize samesex marriage. It only decriminalized homosexual activities between two consenting adults in private. You can’t blame people for having different orientation.” He added, “They can ask for reconsideration of the judgment before a different bench.” 
    Co-author of the HC verdict, retired Delhi chief justice A P Shah, couldn’t hide his disappointment. But Shah declined to give a view, saying, “I haven’t read the SC judgment so it’ll be difficult to comment. Whatever I had to say I wrote in my 2009 judgment.” 
    WHAT THE SC JUDGES SAID 
    Section 377 of Indian Penal Code does not suffer from the vice of unconstitutionality and the declaration made by the Delhi high court (decriminalizing consensual gay sex between adults in private) is legally unsustainable 
    Competent legislature shall be free to consider the desirability and propriety of deleting Sec 377 from the statute book or amend the same as per the suggestion made by the AG 
    In its anxiety to protect the so-called rights of LGBT persons and to declare that Sec 377 IPC violates the right to privacy, autonomy and dignity, the high court has extensively relied upon the judgments of other jurisdictions (foreign countries) 
    Though these judgments (from foreign countries) shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature 
    The writ petition filed by Naz Foundation was singularly laconic in as much as except giving brief detail of the work being done by it for HIV prevention targeting MSM community, it miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the state agencies towards sexual minorities and consequential denial of basic human rights to them 

There’s Room For Review of SC judgment

There’s Room For Review

Manoj Mitta TNN {Thr Times of India dated 12.12.2013]

New Delhi: The last time the Supreme Court hit global headlines was in the Novartis case in April when it raised the bar for patents and made a life-saving drug more accessible to cancer patients. The reason this time for making waves around the world could not have been worse. Among the repercussions of its ruling on Wednesday in the Section 377 case is that HIV/ AIDS patients among LGBT persons may not any longer be able to access public health facilities without running the risk of being harassed or even arrested. 
    While setting aside a 2009 Delhi high court verdict, the SC put its imprimatur on, what additional solicitor general Indira Jaising described as, the “medieval mindset” of this colonial vintage provision in the 1860 Indian Penal Code. If the mindset were indeed of the medieval age, it might not have been from India. Consider the graphic depiction of homosexuality in the medieval temples at Konark and Khajuraho. Adding to the irony is the coincidence that the SC restored the blanket ban on homosexuality just when Britain is set to recognize same-sex marriage. 
    Thanks to the retrograde decision made by the SC, India will no more be in the category of liberal democracies which decriminalized homosexuality. It was put in that honourable category barely four years ago by the high court, when it read down Section 377 in such a manner that this criminal provision applied only to non-consensual acts of homosexuality. In the high court’s judgment, Section 377 violated the fundamental rights of LGBT persons unless its ambit was confined to non-consensual sex. 
    By doing away with the device of reading down the provision, the SC upheld the constitutionality of Section 377 without any qualification. As a corollary, cops can now book gay persons even for consensual sex and they are liable to severe punishment extending to life imprisonment. After all, the provision expressly penalizes whoever “voluntarily has carnal intercourse against the order of nature”. The religious groups, which appealed against the high court decision and claimed that Section 377 was in tune with Indian culture, have had their way in the SC. 
    In the tussle between “public morality” and “constitutional morality”, the SC tilted the balance in favour of the former. The HC had held a contrary view: “Moral indignation, howsoever strong, is not a valid basis for overriding individuals’ fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.” Though this was the heart of the high court verdict, the SC glossed over the issue of constitutional morality. 
    Instead, in its parting observation, the SC passed the buck to Parliament saying it was “free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same”. In effect, the SC put the matter in the domain of an elected body which is even less likely to place constitutional morality above public morality. 
    Rather than giving due regard to constitutional morality, the SC held that the HC’s perception of homosexuality had been influenced by developments in other countries. Though these judgments elsewhere shed light on the plight of sexual minorities, it said that they could not be “applied blindfolded” for deciding the constitutionality of Section 377. 
    For all the judicial precedents cited by it, the SC verdict is sketchy on why Section 377 in its pristine form did not violate any of the fundamental rights. On the face of it, Section 377 is so vaguely worded that even a heterosexual act that deviated from “the order of nature” – penile vaginal intercourse – was liable to attract punishment. Yet, all that the SC explained was that “while analysing a provision the vagaries of language must be borne in mind and prior application of the law must be considered.” 
    This is because the SC accepted the contention of the religious groups that Section 377 had been sparingly used. It said that the highcourthad“overlookedthata miniscule fraction of the country’s population” constituted LGBT persons and that in 150 years less than 200 persons had been prosecuted for committing the offence. But then those statistics covered only the cases in which judgments had been delivered. They ignore the larger reality of LGBT persons being prone to moral policing, blackmail and other such misuse of Section 377. Indeed, there is much scope to review this surprisingly illthought out judgment. 


IMPLICATIONS OF SC VERDICT 

After 4-yr gap, it recriminalizes homosexuality Even consensual sex between gay persons is criminal Heterosexual acts such as fellatio, anal sex also liable 
    Recent widening of rape definition makes it easier to repeal Sec 377 
    In event of repeal, there’ll be void only in relation to bestiality 377. Unnatural offences | Whoever voluntarily has carnal intercourse against order of nature with man, woman, animal... punished with imprisonment for life 
Explanation | Penetration sufficient to constitute carnal intercourse necessary to offence described here 
SC accepted claim of religious groups that Sec 377 had been sparingly used, that in 150 years less than 200 persons had been prosecuted for committing the offence. But these statistics are only for cases where judgments had been delivered. They ignore the larger reality of LGBT persons being prone to moral policing, blackmail.

SC upholds Section 377 of IPC

A Queer Judgment

Bowers vs Hardwick offers precedents for how SC’s gay ban will play out

Vikram Doctor [Source: The Times of India dated 12.12.2013]

In 1986, the Supreme Court of the United States passed a controversial decision in Bowers vs Hardwick. By a bare majority of 5 to 4 it held that the Constitution did not confer ‘‘a fundamental right to engage in homosexual sodomy”. Chief Justice Warren Burger called homosexuality an ‘‘infamous crime against nature’’ and ‘‘a crime not fit to be named”. 
    In 2003, in another case, Lawrence vs Texas, the court reversed its decision. Writing for a 6-3 majority, Justice Anthony Kennedy strongly rebuked the earlier decision: “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers vs Hardwick should be and now is overruled.” In just 16 years the US court had reversed its position to the point where the earlier decision was seen as entirely wrong. 
    The Supreme Court of India has now had its Bowers moment. In deciding on the appeal against the Delhi high court verdict in the Naz India case, which decriminalised same-sex relations between consenting adults, Justices Singhvi and Mukhopadhyay have entirely set aside the earlier verdict. They had options like referring the matter to a constitutional bench or watering down the Delhi high court’s sweeping verdict, but preserving basic decriminalisation. Instead they have set aside the decision in full and referred it to Parliament where, as they well know, all legislation is so stalled that an issue like this will have almost no hope of making headway. 
    What can account for such a perverse ruling? It could hardly be the calibre of counsel or arguments that the opponents of Naz gave in court. Suresh Kaushal, the astrologer who was the lead petitioner against Naz suggested that decriminalising homosexuality would lead to breakdown of army discipline since our jawans in remote outposts would start 
having sex with each other! Most of the arguments against Naz consisted of these ludicrous fears and hatreds, with none of the petitioners showing how they were personally affected by decriminalisation. 
    Against this, supporters of Naz were able to marshal some of the senior-most counsel, all happy to appear pro bono for such a strong human rights cause and they cited ample cases of people harmed by the law, and who would be harmed if it remained. The law had been exercised by blackmailers and bullies against lesbians, gays, bisexuals and transgenders, and these are the people who will be empowered again with this decision from Justices Singhvi and Mukhopadhyay. 
    Could it be the government’s loudly expressed concerns over judicial trespassing into the realm of the legislature and executive? That would seem strange coming from Justice Singhvi who has shown no hesitation in asserting the judiciary’s duty to enforce justice where the state has lagged. Moreover, in this case the government had appeared in favour of Naz India in the Supreme Court, with Attorney General Vahanvati testifying in court that the government saw nothing wrong with the Delhihigh court’s decision. Why would the judges suddenly become solicitous of the judiciary’s limits at a time when they know well that the executive and legislature is unlikely to act in its place? 
    Bowers may have one answer for why the judges have acted like this. Because one of its saddest aspects was how it turned on one judge, Lewis Powell, who went with the majority without having any strong feelings on the matter. As he told one of his clerks, he didn’t know any gay people and didn’t feel the case merited more than 30 minutes of his time. (The irony is that the clerk he told this to was gay, but hadn’t really come out to him.) Powell could not personalise the case and so voted with the majority. Years later, in a very rare admission for a judge, he admitted he could have been wrong. 
    Perhaps it was as simple as this in the Supreme Court. The judges didn’t know any people of alternate sexuality, and so the many cases submitted to them of how such people have suffered under Section 377 of the Indian Penal Code did not ring as real as might the problems suffered by people they could identify with. Theirs could be a failure of imagination as much as a failure of courage to decide on a controversial issue. This was a case which would have cost the judiciary no more than the simple generosity needed to extend equal rights for all, yet they couldn’t do it. 
    But if they could not, it is certainly not true of others. The decision has drawn almost uniform outrage across the media, from international organisations which had seen Naz India as a shining example of India’s commitment to human rights and from all people of imagination and generosity. By contrast the opponents of Naz India drew on fear and falsities, and these offer no good foundation for any future growth. Bowers was overruled because the judges finally realised that they knew gays, lesbians, bisexuals and transgendered people too, and they were no different, in any way that really matters, from everyone else. This will happen in India too and one can only hope the Supreme Court doesn’t make us wait 16 years for this.