THE FORENOON OF WEDNESDAY, DECEMBER 11, 2013, will be remembered as a dark hour in the history of the Supreme Court of India. As Chief Justice P. Sathasivam and Justice Ganpat Singh Singhvi began the day’s proceedings at 10-30 a.m. in Court No.1, the significance of the two judges sitting together to hear the day’s matters was clear: Justice Singhvi was simply following the convention which requires that a retiring judge sit along with the Chief Justice on the last day of his office. However, none in the courtroom realised that Justice Singhvi, through his last judgment to be delivered on that day, was going to turn the clock of justice back by several decades.
The atmosphere in the courtroom was tense as litigants, their counsel, and mediapersons waited with bated breath for the verdict, almost 21 months after the final hearing in the Suresh Kumar Koushal vs Naz Foundation case got over. Justice Singhvi read out the operative portion of the judgment declaring that no constitutional infirmity was found in Section 377 of the Indian Penal Code (IPC) and that the Delhi High Court judgment decriminalising homosexuality had been set aside.
A Bench comprising Justice Singhvi and Justice Sudhansu Jyoti Mukhopadhaya not only held Section 377 constitutional but questioned the constitutional right of a sexual minority, the lesbian, gay, bisexual, and transgender (LGBT) community, to equality and justice and to the constitutional guarantees of life and liberty. Many—not just LGBTs—were appalled at the poor reasoning in Justice Singhvi’s judgment to arrive at his conclusions.
The IPC was drafted by Lord Macaulay and introduced in 1861 in British India. Section 377 of the IPC is contained in Chapter XVI titled “Of Offences Affecting the Human Body”. Within this Chapter, Section 377 is categorised under the sub-chapter titled “Of Unnatural Offences” and reads as follows:
“377. Unnatural Offences—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 ten years, and shall also be liable to fine.
“Explanation—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”
The marginal note refers to the acts proscribed as “unnatural offences”. This expression, however, is not used in the text of the Section. The expression “carnal intercourse” is used in Section 377 as distinct from the expression “sexual intercourse”, which appears in Sections 375 and 497 of the IPC.
On July 2, 2009, a Bench comprising the then Chief Justice Ajit Prakash Shah and Justice S. Muralidhar of the Delhi High Court declared Section 377, insofar as it criminalises consensual sexual acts of adults in private, as violative of Articles 21, 14 and 15 of the Constitution. But the Bench added that the provisions of Section 377 would continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.
A large number of organisations and individuals, including two who were interveners before the High Court, challenged the High Court judgment in the Supreme Court. During the pendency of the special leave petitions, the Supreme Court allowed several applicants to act as interveners.
The main petitioner, Suresh Kumar Koushal, an astrologer, himself was not a party in the case decided by the High Court. The court accepted his claim that as a citizen he had the moral responsibility and duty to protect the cultural values of Indian society and that as he believed that the High Court’s judgment in the case threatened those values, he had a right to appeal against it.
The Delhi Commission for Protection of Child Rights was another petitioner before the Supreme Court. Constituted under the Commissions for Protection of Child Rights Act, 2005, it is empowered to take suo motu notice of deprivation and violation of child rights. Insofar as the Delhi High Court held that Section 377 would continue to apply to penile non-vaginal sex involving minors, the commission must have had no grievance with regard to the High Court’s order. But it was allowed as a petitioner, challenging the merits of the High Court’s judgment.
Another petitioner, Ram Murti, simply claimed he was a citizen and had a duty to report if something illegal was happening. Other petitioners included B.P. Singhal; B. Krishna Bhat; the Joint Action Council, Kannur; the Tamil Nadu Muslim Munnetra Kazhagam; the Raza Academy; the Krantikari Manuwadi Morcha Party; the Utkal Christian Council; the All India Muslim Personal Law Board; S.K. Tijarawala (on behalf of the yoga guru Baba Ramdev); the Apostolic Churches Alliance; Prof. Bhim Singh; and the Sanatan Dharam Pratinidhi Sabha, Delhi. Eleven of the 15 petitioners before the Supreme Court were not parties before the High Court.
There were seven interveners in the case. They were the Samajik Ekta Party, the film-maker Shyam Benegal, the Trust God Missionaries, Minna Saran and Others (parents of LGBT persons from different professional, sociocultural backgrounds and different regions of the country), Dr Shekhar Seshadri and Others, Nivedita Menon and Others, and Ratna Kapur and Others. Most of these interveners supported the respondent, Naz Foundation, who was the petitioner before the High Court.
Of these, Minna Saran and Others argued that criminalisation of consensual sexual acts of adults in private not only affected LGBT persons but also their families. They contended that they accepted their children’s sexuality and were acutely aware of the social stigma, prejudice, myths and stereotypes that surrounded the subject of homosexuality in India.
Dr Shekhar Seshadri and Others are professionals who have been practising as psychiatrists, clinical psychologists and behavioural psychologists in the field of mental health in reputed medical institutions across India. They told the court that they have had considerable expertise in addressing mental health concerns of LGBT persons. They submitted to the court that sexual orientation is an immutable characteristic and is present at birth.
Nivedita Menon is a professor in political thought at Jawaharlal Nehru University, New Delhi, and Ratna Kapur is a law professor with the Jindal Global Law School. They were concerned with the mental distress caused to the LGBT community, and the likely consequences of the Supreme Court interfering with the decision of the Delhi High Court.
Observers were disappointed that even after hearing such eminent interveners, the Singhvi Bench never seriously questioned the appellants’ standing during the arguments in the case. This was in contrast to how the Naz Foundation came before the Delhi High Court through a writ petition under Article 226 of the Constitution. The Naz Foundation is a non-governmental organisation involved in HIV/AIDS intervention and prevention. First, the High Court dismissed its petition, saying it raised only academic issues. When it challenged this dismissal before the Supreme Court, the court remanded it to the High Court with a direction to hear the petition on merits.
The Government of the National Capital Territory of Delhi was the main respondent before the High Court. The Union of India was another respondent. All the principal parties, the petitioner and the two government respondents, accepted the High Court’s decision. The Union of India, which has a responsibility to defend and enforce existing laws, declined to pursue an appeal before the Supreme Court, after a Group of Ministers constituted to examine the issue concluded that there was no merit in appealing given the clear merits of the Delhi High Court order. Through written and oral submissions, the Naz Foundation challenged the appellants’ standing to approach the Supreme Court. Yet, according to those who watched the hearings closely, the Supreme Court Bench did not spend much time on this jurisdictional question. It is not surprising that Justices Singhvi and Mukhopadhaya had nothing to say on the appellants’ standing in their 98-page judgment.
Appeals by special leave
The appellants approached the Supreme Court not under Article 32 by way of a writ petition, but under Article 136, which allows appeals by special leave. Therefore, the court had the discretion to examine whether the appellants had the requisite standing. As the eminent jurist and former Supreme Court judge Justice V.R. Krishna Iyer observed in one of the cases, “though parties promiscuously provoke this jurisdiction, the court parsimoniously invokes the power”. A keen observer of the case commented before the delivery of the Koushal judgment: “The two teams have left the stadium after a full and fair game. They are content with the umpire’s rulings and the final outcome. It seems inconceivable that spectators can now come out to the pitch and demand a rematch involving them.”
Yet this is exactly what happened, as the Supreme Court did not at all question the third-party appellants’ standing before it to appeal against the Delhi High Court judgment. Although most appellants represented religious bodies, they did not even assert that the High Court verdict impacted their religious beliefs. In addition, the Supreme Court’s own previous jurisprudence suggests that the court had always insisted that third-party appellants must prove their standing and show how their interests were affected by the High Court’s order.
The Singhvi Bench had little respect for reliance on foreign judgments while interpreting Indian laws. In Paragraph 52 of the judgment, the Bench asserts, by citing inappropriate legal precedents, that judgments of other jurisdictions cannot be applied blindfolded to decide the constitutionality of the law enacted by the Indian legislature. By doing so, the Bench probably pre-empted a discussion on the recent United States Supreme Court’s decision in Hollingsworth vs Perry in which the court dismissed a third-party petition against a District Court order that declared as unconstitutional Proposition 8, a ballot initiative passed by voters in California State amending the California Constitution to define marriage as a union between a man and a woman. As in Koushal , in Perry , officials named as defendants refused to intervene and defend the law. The official proponents of Proposition 8 intervened to defend it. The U.S. Supreme Court held in this case that a generalised grievance—no matter how sincere—is insufficient to confer standing. “Standing”—an equivalent of locus standi under the Indian law—requires that the appellant must have suffered a concrete and particularised injury.
There are other blunders in the Singhvi-Mukhopadhaya judgment (see “Unequal citizens” on page 11). Even as analysts continue to expose the Singhvi judgment for its superficial understanding of the issue and its lack of sensitivity to the plight of LGBTs, its inherent contradictions coupled with certain crucial nuggets have come to the fore.
In Paragraph 38, the Bench points out that in all the Section 377 cases examined by it, the issues involved were non-consensual and markedly coercive situations, and the courts were keen to bring justice to the victims who were either women or children. The Singhvi Bench was apprehensive of whether the court would rule similarly in a case of proved consensual intercourse between adults. This probability of non-interference by the courts in the case of consensual intercourse between adults makes the Singhvi Bench desist from preparing a list of acts that would be covered by Section 377, although none before the court had asked for such a list. Strangely, the Singhvi Bench is not convinced that if in its view the courts are unlikely to intervene in cases of consensual intercourse between adults, then it is equally unnecessary to set aside the Delhi High Court’s ruling decriminalising consensual sexual acts of adults in private.
Although Justice Singhvi seeks to defend the presumption of constitutionality of laws made by the legislature, his reliance on two cases decided by the Supreme Court, on the contrary, supports the opposite view, namely, that there is no such presumption. In John Vallamattom vs Union of India (AIR 2003 SC 2902), the Supreme Court struck down Section 118 of the Indian Succession Act, which voided deathbed bequests by Indian Christians for charity or religious purposes. This provision, like Section 377, was a pre-constitutional enactment and the court did not attach any presumption of constitutionality to that provision.
Anuj Garg vs Hotel Association of India (2008) 3 SCC 1 was another decision the Singhvi Bench cites approvingly while discussing the presumption of constitutionality of Section 377. In Anuj Garg , the issue was the constitutionality of Section 30 of the Punjab and Excise Act, 1914, and the court held in this case that pre-constitutional legislation was “susceptible to challenge on the touchstone of Articles 14, 15 and 19 of the Constitution”. The Act banned female bartenders, and the court rightly struck down the provision. Both John Vallamattom and Anuj Garg threaten the continuance of Section 377, but Justice Singhvi unwittingly relied on them to support his case.
The legislature chooses not to amend a provision of law for various reasons. Its failure to do so should in no way be construed as its reluctance or unwillingness, as Justice Singhvi infers in the case of Section 377. If his deference to the legislature is taken seriously, then the court could never have declared Section 303 of the IPC unconstitutional in Mithu vs State of Punjab , decided by a five-judge Constitution Bench (AIR 1983 SC 473). Section 303 provided for mandatory death sentence for life convicts found guilty of murder. Justice Singhvi did not find the Mithu ruling binding on his Bench on the question of unqualified deference to the legislature on the constitutionality of laws.
Protests from civil society
As the unjustness of Justice Singhvi’s judgment unfolded, spontaneous protests erupted across the country. Interestingly, the protests were not limited to the LGBT community but were marked by participation from women’s organisations, civil society groups, and people from all walks of life across the gay-straight divide. Kavita Krishnan, national secretary of the All India Progressive Women’s Association (AIPWA), said that this was not just an issue concerning LGBT people. “It’s ironic that this judgment comes out just about a year after the protests against the Delhi gang rape on December 16 rocked this city. Both women and LGBT people are victims of the same patriarchal mindset,” she said.
On December 16, there was a coordinated protest across 36 cities in the world observing a “Global Day of Rage”. Chitra Palekar, one of the interveners in Koushal on behalf of the parents of LGBT persons, said: “What is overwhelming is the huge support from heterosexual couples in the form of emails and phone calls after the judgment came out. My advice to all parents whose children are gay or lesbian would be to ignore the courts and nosy neighbours and stand by your children.”
Jagmati Sangwan, general secretary of the All India Democratic Women’s Association (AIDWA), said: “How can you keep talking about India’s unity in diversity and then not accord basic rights to a section of the population?” Jagmati Sangwan recounted her fight for justice for a woman athlete in her college days whose medal was taken away on the grounds that her gender could not be determined.
With civil society taking almost a united stand on the issue, the options before the political parties appeared limited. The Congress seemed to indicate that it would push Parliament for legislation to overturn the verdict. However, with the winter session of Parliament being adjourned sine die and with a slew of Bills remaining pending, it seemed unlikely that this would be on top of the priority list of the government despite its homilies on the issue. A few Congress Ministers at the Centre, including Kapil Sibal and P. Chidambaram, expressed their disappointment with the judgment.
United Progressive Alliance chairperson Sonia Gandhi urged Parliament to “uphold the constitutional guarantee of life and liberty to all citizens of India, including those directly affected by this judgment”. She said “the High Court had wisely removed an archaic, repressive and unjust law that infringed on the basic human rights enshrined in our Constitution”.
Congress vice-president Rahul Gandhi said: “My personal view is that these are matters of personal freedom. I think I would agree more with the High Court. I think these matters should be left to individuals. These are their choices. The country is known for its freedom of expression.”
The BJP, after remaining silent in the immediate aftermath of the order, spoke in different voices. If Sushma Swaraj, Leader of the Opposition in the Lok Sabha, reserved her view to be expressed at an all-party meeting on the issue, party president Rajnath Singh described homosexuality as unnatural and ruled out extending support to the abrogation of Section 377. The party’s prime ministerial candidate and Gujarat Chief Minister Narendra Modi, too, maintained silence over the issue.
Brinda Karat, former Rajya Sabha member of the Communist Party of India (Marxist), described the Supreme Court order as wrong, emphasising that sexual relations that were consensual could not be criminal. AIDWA, of which Brinda Karat is a patron, expressed its deep disappointment with the judgment and said it was shocking that “in spite of the Union of India (along with the petitioners) arguing in favour of a reading down of Section 377, the Supreme Court has upheld this draconian and discriminatory Section”.
While the Trinamool Congress, the Janata Dal (United), and the Aam Aadmi Party criticised the judgment, the Samajwadi Party supported it. Other parties such as the All India Anna Dravida Munnetra Kazhagam and the Dravida Munnetra Kazhagam maintained a studied silence on the matter. Clearly, the voices of protest against the judgment are loud and clear, while signs of support for it are muted. The situation, therefore, is conducive to reform of Section 377 without any compunction.
By forcing political parties and civil society groups to take a stand in favour of the human rights of sexual minorities, the Singhvi judgment might well have unwittingly contributed to greater awareness about the need for a legal regime that safeguards their interests and mitigates the societal prejudice and grounds for discrimination against them. This offers a ray of hope for those disillusioned by the judgment and its consequences. The Supreme Court cannot be oblivious to this subtle shift in public opinion when it is called upon to review the Singhvi judgment in the near future.