Lawyers who have appeared in 2012 and now recognise that this five-judge bench was more aware and willing to listen to petitioners.
Last week, as the Supreme Court concluded the historic hearing on Section 377, it was evident that the court had come a long way in understanding homosexuality.
The homophobia and insensitivity during the hearing were dialled down drastically and whatever little came from the lawyers representing religious groups was called out by the judges, a far cry from 2013 when it had restored Section 377.
In 2012, the 17-day hearing in Suresh Kumar Koushal vs Naz Foundation case in the Supreme Court was almost traumatic for many LGBT people.
Even as the historic ruling is awaited, it is safe to say that the apex court is unlikely to repeat the monumental mistake it made nearly five years ago. As the hearing concluded this week, the court itself almost indicated that the law will be scrapped.
I did not witness the proceedings in 2012 and back then lawyers and non-profits were not live-tweeting every word uttered in court. But many advocates maintain their own records of proceedings and these notes give a glimpse of how vulgarity was disguised as sermons on constitutionality.
What judges asked
For starters, the nature of questions put to the judges by the lawyers was poles apart.
Lawyers who have appeared both in 2012 and now recognise that this five-judge bench was more aware and was willing to listen to the petitioners. In 2012, records suggest the judges made too many interruptions and put hypothetical questions suggesting they knew very little about the gay community.
Justices G.S. Singhvi and Sudhansu Jyoti Mukhopadhyaya, who heard the case in 2012, had started off the proceedings with an unusual question to a senior advocate, perhaps indicating which way they would rule.
“Can anybody claim a fundamental right to have carnal intercourse against the order of nature?”
A few days into the hearing, Justice Singhvi abruptly asked additional solicitor general P.P. Malhotra if he knew any homosexual person personally.
When Malhotra pleaded ignorance, many recall a collective sigh in the courtroom.
In another exchange, Justice Mukhopadhyaya asked if someone could claim it to be natural if he is attracted to animals, almost equating homosexuality to bestiality. Explanations were repeatedly sought for terms like MSM and carnal intercourse.
Even Fali Nariman who appeared for parents of LGBT people had to read from the Oxford Dictionary that homosexuality was not sexual perversity but “sexual inversion” since his legal arguments did not connect with the bench.
In Danish Sheikh’s play ‘Contempt’, he brings alive the exchanges in the courtroom, replete with monologues of the judges where they rejected every argument put forth by the LGBT.
Last week, advocate Menaka Guruswamy personalised the everyday struggles of the LGBT to the judges by talking about their “business of life” instead of starting the argument with the statement that homosexuals are people too, deserving of rights.
Time given to religious groups
It is hard to miss from the court’s 2012 daily orders (that record who argued that day but not their arguments) that almost two-thirds of the court’s time was given to advocates representing religious groups.
These organisations have no role in dictating what must be a crime, yet, the court had given them all a patient hearing, allowing them to say all sorts of things on public morality.
The Quran, Bible, and Arthashastra were all quoted to condemn homosexuality and the Vatsayana Kamasutra was recited to explain the sexual mores of a pre-colonial India.
Initially, the court called Baba Ramdev’s intervention a publicity gimmick but then gave his lawyer a patient hearing.
The All India Muslim Personal Law Board also engaged a senior advocate who argued that even if there was a right, like that for privacy, sexual orientation could be restricted on the grounds of morality and health.
There was also anger against Naz Foundation and the campaign it had led. A lawyer appearing for a Christian organisation accused Naz of being a support group for homosexual men, while others questioned why the organisation was using government funds (from The National Aids Control Organisation) to “promote” homosexuality, questioning its locus to file the case.
Fali, frustrated with the arguments, in fact, told them to imagine that this was a case where “Mr. Naz” had private sexual intercourse with another man.
Last week, the religious groups got not more than a day and a half in the five-day hearing and they were complaining that no senior advocate was available to represent them.
Insistence on numbers
In 2012, Justice Singhvi also asked for a list of cases on Section 377 in post-Independence era and complained that only a few cases existed. Senior advocate Anand Grover had told the court that he could not find a single gay man in the country who was willing to put his name to the petition, so there cannot be exact statistics for LGBT cases.
The lack of numbers was reason enough for the court to conclude there was no harassment due to the law.
Last week, as Grover began to make this point again, Justice D.Y. Chandrachud interrupted him and said the court understands that fear of penal consequences pushes people to hide.
He followed that by saying he had quoted a Harvard publication in his opinion in the Right to Privacy case that argued this.
However, this round of litigation saw many gay men and women come out and assert themselves. It is hard to miss the sea of change. One can only hope that it is reflected in the Supreme Court’s ruling as well.