I belong to the school of thought which believes that an Attorney General must be heard in court and not outside it. However, there comes a time when an exception has to be made. I believe this is one such time. Given the importance of the matter and widespread anguish and heartache across the country, i feel that i must depart from this self-limitation to set the record straight and to explain the stand taken by the government in the Section 377 case.
The Delhi high court’s judgment was delivered in 2009. The hearing in the Delhi high court itself had a chequered history. The Supreme Court had sent the matter back to the high court for consideration on merits and the judgment finally came in 2009. Thereafter, the matter reached the Supreme Court. The hearing concluded in March 2012. Judgment remained reserved for a long time. Finally, when it was delivered on Wednesday, the intensity of reaction was directly proportionate to the length of time the consideration took.
The law minister in a res-trained reaction stated that the Supreme Court has given its judgment and Parliament will consider the matter and perform its duty.
It’s not my intention to comment on the judgment. A lot has already been said. A lot more can be said. However, i need to clarify the stand of the government of India and the stand we took in the Supreme Court.
When Delhi high court’s judgment was delivered, there were strong views even within government, as could be expec-ted. Notwithstanding this, the Group of Ministers had recommended that there did not appear to be any legal error in the judgment. The cabinet accepted the recommendations. An affidavit was filed on March 1, 2012 by the home secretary reiterating the recommendations and the fact that the cabinet had accepted these.
In my written submissions, therefore, i clearly and categorically stated: “Accordingly, it is submitted that the government of India does not find any legal error in the judgment of the high court and accepts the correctness of the same. This is also clear from the fact that it has not filed any appeal against the judgment of the high court.”
The cabinet at its meeting held on September 17, 2009 had said that the Attorney General of India would assist the court in arriving at an opinion on correctness of the high court’s judgment. Initially, i was unable to attend the hearing. There was considerable confusion because a law officer who had appeared in Delhi high court supporting Section 377 of IPC and its validity, reiterated that stand. When this happened, there was outrage. The then home minister was furious. Home ministry said that submissions had been made without their instructions. Immediately, another law officer corrected the position. That is how the affidavit dated March 1, 2012 came to be filed.
The court requested me to appear. I did. Whilst making submissions which i have quo-ted above, i also mentioned the social background in which Section 377 was enacted.
I referred to a book written by Lawrence James, Raj: The making and unmaking of British India. James wrote, and i quoted extensively from his book, that in Britain homosexuals were widely despised and ‘buggery’ was a capital crime until 1861. An anti-homosexual feeling had erupted in England. Homo-sexuals were arrested and pilloried in 1810. In London, mobs used to bay for their blood. As a result, several persecuted homosexuals left England and came to India where opportunities were more and risks were less. There was a reaction to this on the part of missionaries who had become increasingly active in India. This led Macaulay to formulate Section 377.
As far as Indian society was concerned i said: “Indian society prevalent before the enactment of the IPC had a much greater tolerance for homosexuality than its British counterpart, which at this time was under the influence of Victorian morality and values in regard to family and the procreative nature of sex.”
The categorical stand was: “Introduction of Section 377 in India was not a reflection of existing Indian values and traditions. Rather, it was imposed upon Indian society due to the moral views of the colonisers.”
The concept of intercourse against the order of nature is troublesome. It raised further questions: “What then is the order of nature?” and “What is against the order of nature?” Is it not conceivable that what was perceived to be against the order of nature in 1860 may not subsequently be perceived to be against the order of nature particularly in view of a change in society’s understanding or tolerance of that thing?
The world has moved on. It is fast changing. Perceptions have changed. Attitudes have changed. Law does not and cannot remain static. Whenever necessary, the Supreme Court has reflected changed perceptions of the law and has struck outmoded laws down. They did so when striking down rent control laws as socially irrelevant. They also did it by breathing fresh life into Article 21, protecting life and personal liberty. They did it by consigning the archaic judgment in A K Gopalan vs State of Madras, rendered in 1950, into the dustbin of history. Unfortunately, they declined to give a similar treatment to Section 377. Therein lies the tragedy.
The writer is Attorney General of India.