How the Section 377 ruling is linked to the problem of judges’ appointments

An activist waves a pride flag in front of the Supreme Court in New Delhi | PTI file photo

Hint: US Senator Kamala Harris’s grilling of Trump’s Supreme Court appointee Brett Kavanaugh can teach us something about it.

Normally, columns like these are restricted to one issue. However, this time, I am taking the liberty to write about two issues which may look far removed from each other, but actually have an inextricable link under our present judicial system. Things will become clearer to you towards the end.

‘What if your son is gay?’

In 2007, I started covering the union ministry of law and justice. At the time, Section 377 was a hot topic, and I started following the case and government’s stand on it.

I met a senior minister, who shall remain unnamed, in the Congress-led UPA government who was among those guiding the government line on the contentious issue. This minister strongly believed Section 377 of the Indian Penal Code should be retained as it is.

I asked him why the UPA government wasn’t acknowledging that times had changed and 21st century India had no room for Victorian Era morality; why it wasn’t taking steps to amend the section or facilitating the Delhi High Court, where several petitions challenging the constitutionality of 377 were being heard by a bench headed by chief justice A.P. Shah.

“What if your son is gay? Will you be okay with that? What about society?” the minister counter-questioned, adding: “We will lose votes of Hindus, Muslims, Christians, Sikhs… everyone if we support it (decriminalising homosexuality). Our Indian ethos doesn’t tolerate such kind of things.”

So, votes were the real reason why the UPA chose to oppose any move to water down Section 377. Not surprisingly, the affidavit filed by the home ministry cited “public morality, public health and healthy environment” as the reason why homosexuality couldn’t be decriminalised.

In the 2009 general elections, the UPA managed to retain power, and soon after came the Delhi HC judgment, which said consensual gay sex was no longer a crime.

There were suggestions that even all-powerful Congress president Sonia Gandhi did not want the government to appeal against this high court judgment. But when I asked a different minister (who will also remain unnamed) about this, the minister replied: “She may want that, but India will never accept it. We can’t be seen as supporting gays. It will cost us votes.”

When the matter reached the Supreme Court, all the home ministry did was to tell the court that it didn’t have any stand on the issue, and that it was leaving it to the wisdom of the court.

But P.P. Malhotra, additional solicitor general appearing for the ministry before the SC bench of justices G.S. Singhvi and S.J. Mukhopadhaya, went a step further. A very soft-spoken lawyer, Malhotra decided on his own that even though the ministry had decided against taking a stand, it was his duty to apprise the court that homosexuality between consenting adults was “illegal and immoral”. He was immediately taken off the case.

In one of my several meetings with him afterwards, I asked him why he had made that statement. His response, in Punjabi, was: “Families will be destroyed, society will be destroyed. What about society? How can you keep quiet?”

Selecting our judges

Last week, the Supreme Court collegium cleared names of some advocates for appointment as judges of the Punjab and Haryana High Court and Delhi High Court. In doing so, the collegium headed by Chief Justice of India Dipak Misra decided to ignore objections raised by Haryana chief minister Manohar Lal Khattar as well as a member of the three-judge high court collegium who had earlier cleared the names.

The name of advocate Arun Monga, an appointee to the Punjab and Haryana HC, stood out. Khattar’s letter pointed out that Monga, originally enrolled with the Bar Council of Punjab and Haryana, was now enrolled with the Bar Council of Delhi since 2004 and permanently settled in Delhi. More importantly, “he has been appearing mostly in Delhi High Court, which is also evident from the record that he is stated to have appeared in the Punjab and Haryana High Court only in 12 reported and 11 unreported cases,” Khattar wrote.

Then why did the high court collegium deem it fit to recommend him? How many times did he appear before then-chief justice S.J. Vazifdar and other members of the HC collegium? After all, the collegium members should have seen the lawyer in action to analyse his capacity for judgeship. Or is that asking for too much of our opaque judiciary?

Since everybody, courts included, keeps on harping on transparency, hasn’t the time come for Indians to be informed how our judges are actually appointed?

Since the SC collegium claims to have started the practice of interviewing the names recommended by the HC collegiums, isn’t it time to make details of the interview public?

Look at this two-minute video of US Senator Kamala Harris grilling and tearing apart President Donald Trump’s Supreme Court nominee Brett Kavanaugh, a sitting circuit court judge, over his perceived links with Trump’s lawyer. If the US can do it, why can’t we?

We could begin by making a candidate’s bio data and the documents he/she submits, including names of reported and unreported cases he/she appeared in, public. But, knowing how vehement our judiciary is when it comes to protecting its own secrets, the chances of that happening range from bleak to downright impossible.

The connection

Coming to the link between the two issues, not one of the five judges hearing the Section 377 case gave a dissenting judgment, which means none agreed with the 2013 judgment of Justices Singhvi and Mukhopadhaya.

This means the earlier bench erred in holding that “Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the division bench of the high court is legally unsustainable”.

If we had a more transparent system of appointing our judges, and the public was aware of the political and social leanings and views of our judges, we wouldn’t have required a five-judge bench of the Supreme Court to overturn the 2013 ruling.