“We were expecting to win but not in the same manner as we had won in the Delhi High Court” – Anand Grover on the S.377 Judgment

The Supreme Court on Wednesday set aside a 2009 judgment of the Delhi High Court that had read down the provisions of Section 377 of the Indian Penal Code (Suresh Kumar Koushal & Ors. v. Naz Foundation & Ors). This provision makes it an offence to voluntarily indulge carnal intercourse “against the order of nature”. Reversing the 2009 verdict, the Supreme Court has ruled that Section 377 of Indian Penal Code, 1860 suffers from no infirmity and is constitutionally valid..Bar & Bench speaks with Anand Grover, one of the arguing counsels for the lead petitioner, Naz Foundation, before the Delhi High Court..Bar & Bench: Were you expecting something like this to happen?.Anand Grover: No. We were expecting to win although not in the same manner as we had won in the Delhi High Court. But this is a shocking judgment from the Supreme Court. If you read the judgment, you will find that there is no sound reasoning at all. It is just an eclectic hotchpotch of arguments and there are inconsistencies within the same paragraphs..B&B: Do you think the matter should have been referred to a larger Bench?.Anand: Yes. We had applied orally for it in the beginning but the judge refused. We told the Court that this is a Constitutional issue and a Constitution Bench itself should hear it. But the judges said, “No, no. Sorry”. So out of courtesy, everybody agreed..B&B: What is the next legal step?.Anand: We have examined the judgment. We will file a review and we will also look at filing a curative petition. These are the two options and the third option is writ petition in a case but that won’t set aside the judgment..B&B: What are the chances of a review being allowed?.Anand: We don’t have much hope but we will try. We know the chances of it succeeding are minimal. But I am confident that we will win ultimately. I have already spent 13 years on this issue. I am ready to fight it out and I am not going to give it up. This is an unjust law imposed by the British to destroy the plurality of sexuality in our culture..B&B: How is the mood in the camp?.Anand: We are disappointed but we have had so many setbacks in the past in other cases. This is part of the game but it is unexpected to have this kind of a judgment from the Supreme Court where the entire Constitutional jurisprudence is to expand human rights..There seems to be an anathema to human rights in this judgment, which was evident even in the Bhullar’s case by the same judge. The Supreme Court is actually the protector, the advancer of human rights in India. The fact is that the human rights of equality, liberty, privacy, dignity and health, which were affirmed by the Delhi High Court, are now being stolen away from the community. The fact that they are being made criminals, that too by a judgment, is a black mark on the Supreme Court, which is only at par with the ADM Jabalpur case. Nay even worse. Unlike ADM Jabalpur, where nobody was directly affected. In this case millions of people will be made criminals overnight..This is one of the saddest days for me. This is a judgment based on wholly unsustainable reasoning considering the jurisprudence of the Indian Supreme Court..B&B: You are unhappy with the reasoning adopted by the Supreme Court. Care to elaborate?.Anand: The Court says Article 14 is not applicable. Why? The Court distinguishes between persons who “indulge in carnal intercourse in the ordinary course” and persons who “indulge in carnal intercourse against the order of nature.” It held that these are different classes of people. There is intelligble differentia. However, the Court ignored the fact that such a classification should also be based on a rational nexus. So Article 14 is out of the window. Article 15 gets the same treatment. As regards Article 21, the basic argument was that our own jurisprudence has been borrowed from abroad; from Kharak Singh v. State of Uttar Pradesh to Gobind v. State of Madhya Pradesh & Anr – all borrowed from the U.S. It is not our making and of course the judge says, “No we can’t have jurisprudence from abroad.” But we previously have had jurisprudence from abroad..Secondly, we sought a protective shield of Article 21 against intrusion of the State into intimate sexual sphere, consent is a part of the intimate sphere and the act is applicable with consent. He ignores the issue and the judgments on consent that were cited. He says no. The issue of protective privacy is not even dealt with – that the State cannot intrude into the private zone of individuals without a compelling interest of paramount importance; the burden is on the State. Nothing is discussed..B&B: The judgment also calls for a certain amount of judicial restraint. Yet, often the Supreme Court has not had any difficulty with encroaching on the legislative domain for a variety of issues..Anand: The judgment is a case of double standards. Our Supreme Court and High Courts are the most activist courts. Nowhere in the world does any court have the power to strike down Constitutional Amendments. The Supreme Court has interpreted to include that power in its jurisdiction. In the 2G case, which was in respect of a policy decision, the Supreme Court has intervened. The “Lal Batti” case, which is totally uncalled for according to me, why should the Supreme Court spend so much time? The Supreme Court should have said, “Go to the High Court.” The Supreme Court said that the lal battis were being misused and they were interfering because they didn’t want to compromise the dignity of other citizens. However, in this judgment the Supreme Court says just because Section 377 can be misused, it is not a reason for scrapping it..More importantly, the Supreme Court is required to be an activist when citizens’ Fundamental Rights are threatened. When a person is likely to be blackmailed, persecuted and sent to jail for consensual intimate private behaviour, the Supreme Court is expected to be an activist..B&B: The judgment says the Parliament has chosen not to amend the law or revisit it despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court. Your thoughts..Anand: Correct. That is why the Supreme Court has all the more duty to scrutinize whether Section 377 is Constitutional or not. You can’t abdicate your role and that cannot be an argument at all. If Parliament persists in passing laws infringing fundamental rights, you cannot say, “Since they have not done it, I am not going to look at it”. That argument is completely without substance..B&B: One of the arguments used by the Supreme Court is that an extremely small part of the populace has been adversely impacted by S.377..Anand: We need to read our Constitution again; even if one person’s fundamental rights are infringed the court has to step in. There is no argument in law in our country to say that a miniscule minority is affected so their fundamental rights may be infringed. There are so many minorities in our country. I come from Mumbai. Can we say, for example that Hindus of Chitpavan Brahmin or Kokanastha Brahmins or Parsis, or Dawoodi Bohras or Khojas, who are all miniscule minorities, have no rights? How can you even think like that?.In fact minorities are the ones, which need to be protected by a superior court; and you are telling them, “No, we are not there for gay people.” Is that the way for the protector of fundamental rights to talk?.In 1975, I got involved during the Emergency against the government and I saw some hope because there was Justice Chandrachud, Justice Bhagwati, Justice Krishna Iyer, Justice Chinnappa Reddy and Justice Desai who were expanding the whole scope of human rights. I entered the profession because there was this glorious Supreme Court that protected and advanced human rights. This is the complete negation of what the Supreme Court stood for..B&B: Do you think our Parliament will repeal Section 377?.Anand: The Congress party seems to be supporting. Of course they have their own vested interest. But I am sure the BJP will do it. If the BJP does not do it, it will be exposed. We have been knocking on the doors of the Parliament for some time, but without much success. Now, I am happy to note that they are active. There is a group of parliamentarians who are quite supportive across the parties. We will work with them because it is a human rights issue..Whatever reasons the government may be motivated by, we will use that opportunity. Why shouldn’t we? We are not dogmatic. In fact we have worked for the BJP also, they are ready to do but say, “Wait for 6 months”. But why should we wait?.B&B: Any moments during court arguments that you will never forget?.Anand: Once, Justice Mukopadhaya asked me “If somebody put his tongue in somebody’s mouth (he couldn’t even say kiss), isn’t it penetration?” Similarly the judge asked me whether a mother putting her breast in the mouth of her child was penetration? I was surprised but I was very patient because that is my job. I said, “Penetration has been interpreted by our courts for the last 150 years and has not included penetration of the tongue or the breast, but only meant penile penetration, the penis is the culprit”. The judge said, “No, no we are not bothered about the interpretation of the last 150 years.” That actually was quite astounding. That is one moment I remember..The other is the totally ad hoc manner in the way the court functions. One day when I started [my arguments], they wanted me to finish in half an hour; but the next day they said, “We want to hear you for the whole day”. I was only happy to do but it shows the total chaos in which the Supreme Court functions. There is no system of dividing court time, which is public time. I mean matters are taken out of turn; corporate matters always get precedence. This is not how public money and public time should be wasted..We need to have proper procedure. The Court needs to indicate in advance how much time they will have to listen to the argumemts – one hour or two hours. And have equality among lawyers. Some Judges don’t have the time to read the papers in advance and then they don’t want to listen, especially if the lawyer is not a known face or a junior. But if favourite lawyer walks in, he can go on for days. These things need to be remedied urgently.