“The Legislature has to seriously consider whether S. 377 should be kept in the statute book” – Senior Advocate V Giri

Senior Advocate V Giri represented the Apostolic Churches Alliance and Utkal Christian Foundation, one of the Petitioners before the Supreme Court in the Naz Foundation case. Giri was one of the youngest judges of the Kerala High Court before resigning in 2009 to pursue private practice in Delhi.

In this interview with Bar & Bench, he shares his views on the Naz Foundation judgment and his thoughts on Section 377.

B&B: What were your expectations on the outcome of the case?

V Giri: Can’t say! It was argued thread bare by both sides and it went on for a long time. It has been some time since the judgment was reserved. But then what I thought is that if the judgment is rested purely on the Constitutionality of the provision, then there is a fair chance of the judgment [of the High Court] being reversed. That is what has happened. The Court has not gone into any other issue. The Court has not considered as to whether the provision is in consonance with the social values that are prevalent in the society or not.

In many Western countries, apart from the fact that same-sex relationships were decriminalised long time back, they have even gone one step forward and said that the same-sex marriages are legal and valid. But the Court has not gone by those perceptions. The Court has gone by the Constitutionality only and the parameters within which there can be judicial review.

B&B: The Court has heavily relied upon one of your arguments that Section 377 does not make any classification of persons based on sexual orientation but only criminalises a “sexual act against the order of nature”. Your thoughts.

V Giri: Yes. In the written submissions also what we had laid stress on is this point. One of the main arguments which seem to have permeated the decision of the High Court is that the sexual orientation of a person is immutable, that it can’t be changed. Therefore, if a man has a liking for a person of his own sex, he is not responsible for that and that it is a natural reaction.  That was one of the reasons that had apparently persuaded the High Court to hold that you can’t hold someone to be a criminal for what is his/her natural orientation.

One of the arguments that we put forward is that it is not correct to say that the sexual orientation of a person, in so far as he has a liking for the same sex, is immutable. Therefore, if you don’t find any materials to accept that argument [of liking for same sex being immutable], then it becomes shaky. Then you really cannot call it an orientation, then it is a desire.

In such cases, perhaps he must have his personal liberty of exercising his own choice in matters of sex. Because it is his own private affair and if it is consensual then why should anybody else be bothered about it?  That was one of the main arguments which was put forward by those opposing Section 377. It must be one of the reasons why the Parliament itself might take up [the issue] and then decide to legislate in the manner in which at least some the political parties now seem to be asking for.

B&B: What about the Constitutionality of the provision?

V Giri: When it comes to the Constitutionality of a provision, the Court has adopted an approach where a provision is presumed to be Constitutional. The attack was on Articles 14, 15 and 21. As regards Articles 14 and 15, the Court rejected the argument essentially on the ground that the provision does not classify any persons as such. The question as to whether the classification bears a nexus with the object sought to be achieved was not part of the inquiry made by the Court at all.

Finding that Article 14 is, therefore, not attracted, the Court went on to consider Article 21. A major portion of the inquiry is under Article 21. The Court has adopted a very conservative approach. It has found that the question of reading down the provision may not be an acceptable form of interpretation in this case. There is no provision for reading down is what the Court has said.

Then the Court has rested its findings on the premise that the section does not classify homosexuals as offenders as such. It does not classify persons as homosexuals. It is only the act which is criminalised and not the person per se. And the Court does not find any reason to hold that it is per se violative of Article 21 of the Constitution.

B&B: There is a lot of uncertainty regarding what constitutes an act “against the order of nature”. There has been a catena of cases discussing as to what constitutes carnal intercourse against the order of nature. Is not Section 377 ambiguous and is it only proper that the provision be amended?

V Giri: Yes, there definitely could be more clarity on this expression. But having said that, one may also have to say that to legislatively define what acts could be “against the order of nature” may not be that easy. It will be difficult. Bestiality is different. It will be easy to classify it as against the order of nature per se.

As regards homosexuality, when the Legislature sits down and seeks to define it, it has to take into account what are the preferences or mores which are prevalent in the present day society. It will, therefore, be an extremely difficult task to legislatively define as to what would be against the order of nature. What may be against the order of nature according to the perceptions of some people would be perfectly acceptable and natural for those persons who practice it. What is the material on the basis of which one can say “this is against the order of nature.”

Having said that, it is a powerful argument in the hands of those who want a legislative amendment. Because if you are not able to say with clarity as to what could be within the order of nature and what could be against the order of nature, is it not a powerful reason for the Legislature to intervene and amend the law to bring in more clarity to it, especially when it is a penal provision?

The Legislature should now intervene and bring in more clarity as to what is the “order of nature.” Maybe they have to seriously think about whether Section 377 should be kept in the statute book or whether it should undergo drastic amendment. But it is a tough call.

B&B: Coming back to the judgment, the Court has held that it would not give much weight to foreign jurisprudence. Do you think that is the right approach when fundamental rights are under consideration?

V Giri: In consonance with the approach the Court has adopted that “We will look into only the Constitutionality of the provision and we will not go beyond that”, the Court was justified in saying that when you challenge a provision as being unconstitutional, it will have to be in consonance with the scope of judicial review that Supreme Court has adopted in India insofar as our laws are concerned.

To that extent, pre Constitutional laws and post Constitutional laws can be subjected to judicial review only in the same manner.

B&B: Some critics have called this judgment as a “Modern day ADM Jabalpur”. Your reaction to that?

V Giri: I don’t think so. I don’t think you can equate it to ADM Jabalpur. ADM Jabalpur came at a time when there was a suspension of the fundamental rights of the citizens of the country. One distinguishing feature is that the challenge in this case is against the Constitutionality of a provision which has been there in the statute book for 150 years on the ground that it is not in consonance with the existing social mores.

It is not a case where a newly introduced provision has been attacked on the ground that it is unconstitutional or violative of fundamental rights. The High Court took a view and the Supreme Court took a different view. This is not a case where the fundamental rights of a person has been completely suspended or kept in suspended animation, which is what permeated the judgment in ADM Jabalpur. I think the comparison is completely unacceptable.

B&B: The judgment refers to the fact that only a very miniscule population is affected. Does such reasoning hold water?

V Giri: The question as to whether a provision is Constitutional or not cannot be decided on the ground that persons who are affected by it belong to a miniscule minority. The figures keep changing. The numbers game may not be appropriate. Having said that, I don’t think Court really rested its decision on that principle as such. In making the decision, there is a reference to it.  I don’t think that is the basis of the judgment.

B&B: You were Judge in the Kerala High Court before shifting to Delhi? What differences do you find in the Bar? How has the experience been?

V Giri: The Bar at the Supreme Court operates on a much larger canvas. It is a Federal Court and the last court in the country. And obviously the Bar will have to be much more evolved than the Bar in any other High Court, it has to be. Whether it so or not is the moot question. But I am enjoying my stint here.