Everything You Need To Know About Section 377 Of Indian Penal Code And The Story So Far

This was published in Indiatimes

Section 377 of our constitution, introduced with the Indian Penal Code way back in 1860, criminalises sexual acts “against the order of the nature”. This Victorian era statute was struck down by the Delhi High Court in 2009 in the famous Naz Foundation case, but the decision was overturned on appeal by the Supreme Court in 2013, which reasoned that the matter relating to LGBT rights and decriminalisation of homosexuality should be left to the legislature.

There is widespread support for the scrapping of Section 377 among the enlightened sections of Indian society, including eminent lawyers, jurists, renowned writers, political activists, journalists, doctors, actors, producers, directors, teachers, students etc. The Supreme Court judgment overturning the Naz Foundation case has come in for heavy criticism as it runs against the history of the apex court acting as a champion of the underprivileged.

What was the Naz Foundation Case?

In Naz Foundation vs Govt. of NCT of Delhi, the issue before the two-judge bench of the Delhi High Court was whether Section 377 of the Constitution violates the fundamental rights of the LGBT community and if so, should it be struck down as unconstitutional? And should homosexual acts between consenting adults be legalised?

The bench of Justices Ajit Prakash Shah and Justice S. Muralidhar answered in the affirmative and read down Section 377 holding that it violated Articles 14, 15 and 21 of the constitution, which guaranteed the right to equality before law, right not to be discriminated on the grounds of sex and right to life and liberty respectively.

The Appeal – Suresh Kumar Kaushal vs. Naz Foundation

In their appeal in the Supreme Court, the petitioners argued that Section 377 does not classify any particular group or gender and hence is not in violation of Articles 14, 15 and 21 of the Constitution. They also argued that if the High Court judgment was approved by the Supreme Court, “India’s social structure and institution of marriage will be detrimentally affected and it would cause young people to be tempted towards homosexual activities”. They finally submitted that the Supreme Court could not legislate and it should leave the matter of legality or illegality of Section 377 to the Parliament.

Sadly, the Supreme Court accepted the arguments advanced by the appellants and observed that Section 377 is the only law that criminalises pedophilia and crimes like sexual abuse and assault. It also reasoned that if Section 377 was a pre-constitutional statute and if it were in violation of any fundamental right, the framers of the constitution would not have included it in the first place. Based on such observations, the apex court overturned the decision of the Delhi High Court.

Subsequent developments

The decision by the Supreme Court was met with heavy criticism and a general outcry from the intelligentsia, but was welcomed by many religious groups. However, some religious organiaations have begun favoring decriminalisation of homosexuality keeping in view the worldwide trend of acceptance for the practice.

Congress MP Shashi Tharoor has introduced a private member’s bill twice in the Lok Sabha to decriminalise homosexuality, but has been unsuccessful in getting it passed. Many voices within the government, including Finance Minister Arun Jaitley, have favored decriminalisation of homosexuality. In February 2016, the Supreme Court agreed to review its decision in the Suresh Kumar Koushal case and referred the curative petitions filed against the decision to a five-judge constitution bench.

The LGBT community in India is no more a minuscule minority as was made out by the apex court in its judgment. It is a thriving community whose members include prominent public figures such as renowned author Vikram Seth, fashion designers Rohit Bal and Manish Arora, film directors Karan Johar and Onir etc. Today, there are various LGBT groups in college campuses across India, which are doing spectacular work in spreading awareness about the LGBT community and in combating homophobia. 

As the practice of homosexuality starts getting acceptance worldwide, it is only a matter of time before the Parliament and the Supreme Court in India get rid of the Judeo-Christian morality imposed on the Indian public by Section 377 and give the LGBT community in India their right to lead their lives with dignity.

Modi's Speech to US Congress: Culmination of Bipartisan Effort for Closer Indo-US Ties

As India's Prime Minister Narendra Modi travelled to Washington to address the joint sitting of the US Congress, becoming the fifth Indian Prime Minister to do so, Indo-US ties reached a new high in a saga of deepening cooperation between the two democracies. Banned for about 9 years from travelling to the United States, the Prime Minister must be credited for not holding a personal grudge and instead focusing on the advancement of India's national interest through closer cooperation with the United States, a policy which has been pursued strongly by his predecessors. Indeed, endorsement by the United States, Switzerland and Mexico for India's entry into the Nuclear Suppliers Group (NSG), an elite club of 48 nations governing trade in items used for nuclear technology, is the culmination of a coherent Foreign Policy followed in this regard by Prime Ministers Vajpayee and Manmohan Singh even in the face of strong opposition at home.

Hesitations of History 

Prime Minister Modi, in his 45 minute address to US Lawmakers, emphasised that Indo-US relations have overcome the hesitations of history. It is a poignant phrase which wonderfully captures the troubled relationship India and the United States shared at the time of the Cold War. A newly Independent India followed a policy of non-alignment as opposed to its neighbour and rival Pakistan, which opted to become a member of SEATO (South East Asia Treaty Organization) and CENTO (Central Treaty Organization), both military alliances modelled on the lines of NATO and lead by the US, for safeguarding its security interests. As time passed, India increasingly became close to the Soviet Union for its security needs, especially through the Treaty of Peace, Friendship and Cooperation signed in the backdrop of Indo-Pakistan war of 1971.

The ties plummeted to an all time low when India conducted its nuclear test in 1998. Codenamed Operation Smiling Buddha, the covert nature of the tests left the intelligence community in the west red faced and led its failure to detect Indian preparations for an imminent test being known as "intelligence failure of the decade". The United States and other European Nations imposed sanctions, which were lifted by President George W Bush in an effort to stitch together a global alliance against terrorism following the 9/11 attacks. Economic and Strategic cooperation between the two countries began to pick up given the converging geo-political interests and economic reforms at home, but India continued to be a victim of nuclear apartheid by reason of its being excluded from important institutions like the NSG and MTCR (Missile Technology Control Regime), denying it an opportunity to engage in trade of nuclear technology with other nations.

Indo-US Civil Nuclear Deal

What changed the contours of the relationship between the two countries was the hard push given to and the personal leadership shown with regard to the Indo-US Civil Nuclear Deal by Prime Minister Manmohan Singh in 2008. The soft-spoken Prime Minister who was accused of lacking real power and the ability to take decisions on his own, showed uncharacteristic defiance and stuck to his guns in order to support the Agreement with the United States, even risking his own government. The Left Parties famously withdrew support to the United Progressive Alliance, and the government was saved through the outside support of several regional parties. 

Manmohan Singh's leadership also benefited Indo-US relationship in the aftermath of the 2008 Global Financial Crisis, when he and President Obama developed personal rapport and a close working relationship. In his own address to the US Congress, Prime Minister Singh called India's non-proliferation track record as "impeccable" and said that the country neither has, nor will, support the proliferation of sensitive nuclear technology to third countries. He also gave a call for the end of nuclear apartheid against India and an early admission of India to NSG. In his speech to the Indian Parliament in 2010, President Barack Obama endorsed India's case for a permanent seat in the United Nations Security Council, thus taking one more step in the direction of strong Indo-US ties. 

Strategic Autonomy to Strategic Alliance

Prime Minister Narendra Modi, seeking to build on the progress made by his predecessors, has shifted the focus of Indian Foreign Policy from Strategic Autonomy to that of Strategic Alliance. This is a policy which is mindful of the rapidly changing geo-political realities in the region as evidenced by the strong and deepening partnership between China and Pakistan. Nations cannot change their geographies, but they cannot be tied down by their neighbours either. Modi seeks to develop India into a major manufacturing hub and needs enormous foreign direct investment to make that dream come true. The Indian Economy is a lone bright spot in the current global scenario with a growth rate of 7.5% and a young population with majority of its citizens below the age of 35 years. 

In his speech to the US lawmakers, Modi tried to leverage both these strong points and also made a case for closer economic and strategic cooperation and reiterated his focus on government's flagship initiatives like Skill India, Smart Cities, Digital India and building rail, road and port infrastructure. In agreeing to ratify the Paris Climate Change Deal in exchange for a US led push for India's entry into the NSG, the Prime Minister also displayed the Gujarati characteristic skill of striking a good bargain. His call for greater investment from US Businesses drew serious attention given the slowing down of the economy of China and increasing strains in US-China bilateral ties. 

A Roadblock Named China

One of the strategic objectives of a closer Indo-US relationship is to secure the freedom of navigation in the seas particularly in the Asia Pacific region. China's increasing assertiveness in the South China sea has seriously impacted the security considerations of the countries such as Japan and Australia. The United States has led an effort to check China's activities in the region and prevent a major conflict from taking place. Closer Indo-US ties would go a long way in counterbalancing China's influence in the region and maintaining a balance of power in the South Asian region. 

There are obvious implications. China is leading an effort to block the entry of India in the NSG, demanding that its ally Pakistan also be admitted under a "non-discriminatory approach" if India's entry is to be considered. This is obviously not possible since Pakistan has a horrible proliferation record (Iran and North Korea acquired nuclear technology from A Q Khan, father of Pakistan's nuclear program) and its entry into the NSG would render the body meaningless. 

As the United States gets ready to elect a new President, Prime Minister Modi will have to act to make sure that the gains made so far in the Indo-US ties continue to bear their fruits irrespective of the kind of administration that takes charge next. He must improve India's human rights record and continue to protect the interests of India's religious and ethnic minorities while delivering sustainable economic growth. The deepening relations between the world's oldest and the world's largest democracies will significantly benefit people of both the countries if allowed to blossom to their maximum potential.  

Everything You Need To Know About The KM Nanavati Case - How An Affair Turned Friends Into Foes

This was published in Indiatimes

This is a story involving an extra-marital affair that resulted in a murder. The trial of the murderer generated unprecedented media coverage and the circumstances in which the murder took place resulted in huge public sympathy for him. This is also one of the first cases through which the maverick lawyer, Mr. Ram Jethmalani, came into the limelight for the first time.

Kawas Maneckshaw Nanavati was an Indian Naval Officer who had settled in Mumbai with his English wife, Sylvia, and their two children. As his work required him to be away from his family for long periods of time, his wife began an affair with his friend Prem Ahuja. Sylvia wanted to divorce Nanavati and marry Ahuja, but he refused. Distraught by the refusal, she spilled the beans about the affair to Nanavati when he returned to his family.

Nanavati was enraged, but he did not show it. He dropped Sylvia and their two children to a nearby cinema hall, proceeded to the Naval Docks from where he withdrew his pistol and six cartridges on an excuse, finished his shift and went to Ahuja’s office. He did not find him there. He proceeded to Ahuja’s flat and confronted him there asking whether he would marry Sylvia and take in his children.

He refused.

Nanavati shot him dead.

After committing the murder, he proceeded to the Provost Marshal of the Western Naval Command, where he confessed to his crime. The Provost Marshal asked him to surrender before the Deputy Commissioner of Police, which he did. Nanavati was an upright, moral and patriotic officer who did not have any prior history of criminal activity. The jury that heard his trial was sympathetic to his suffering and declared him to ‘not guilty’ by a majority of 8-1.

Ram Jethmalani, a young lawyer at the time, was assisting the prosecution on the request of Ahuja’s sister Mamie Ahuja. The trial court judge found this verdict to be perverse and referred the matter to the High Court.

Throughout the trial, the Bombay Daily Blitz, which folded shop in the 90s, championed the cause of Nanavati. One copy of the magazine, which was usually priced at 25 paisa, was selling at 2 rupees per issue at the height of the trial. The coverage of the trial pitted the Parsi and Sindhi communities in the city against each other. When the matter reached the High Court, a sentence of life imprisonment was read out, upon which Nanavati preferred an appeal to the Supreme Court.

The Supreme Court confirmed the verdict of the High Court in November 1961. Blitz now went into an overdrive. It published a mercy petition in its pages, forcefully conveying the sentiments of the Parsi community which was wholly in favor of pardoning him. The rule of law and the demands of the society had clashed with each other. It was obvious that one had to bend in favor of the other.

Around the same time, Vijayalakshmi Pandit, newly appointed Governor of Bombay and sister of Prime Minister Jawaharlal Nehru, received a mercy petition from Bhai Pratap, a prominent Sindhi leader, in March 1962. Bhai Pratap had a business of import-export of sport goods and bureaucrats around her agreed that he could be pardoned. Pandit pounced on the chance. Bhai Pratap could be pardoned, she reasoned, after Nanavati had been pardoned. This way, both the Parsi and the Sindhi communities would get what they want. The proposal was conveyed to Jethmalani, who was asked to convince Mamie Ahuja for the same. She acceded to the government’s request.

Soon after being pardoned by the government, Nanavati left for Canada along with his wife and two children and was never heard of again. He died in 2003. Sylvia is still alive.

The case has inspired several Bollywood movies, plays and books including R K Nayar’s Ye Raaste Hain Pyaar Ke (1963) starring Sunil Dutt and Leela Naidu, Gulzar’s Achanak (1973) starring Vinod Khanna and Lily Chakraborty and Indra Sinha’s book The Death of Mr Love (2002). It is also rumored that Akshay Kumar and Neeraj Pandey’s latest offing Rustom, is based on the case. 

Even after 50 years, the Nanavati case continues to have a tremendous recall value among a public infamous for its short memory. The question that animated discussions in countless chai shops of Bombay at the time of the trial remains relevant till today - “What would you have done if you were in his shoes?”

The Darkest Hour In Indian Judicial History - When The Supreme Court Surrendered Its Autonomy During Emergency

This was published in Indiatimes

Today, most Indians have an implicit faith in the Supreme Court righting any wrongs done to any citizen by the government. But there was a dark period during the Emergency (1975-77) when even the Supreme Court bowed down to the diktats of the government and robbed the citizens of the country of their final hope of grievance redressal.

What was the case

ADM Jabalpur v. Shiv Kant Shukla, or the Habeas Corpus case as it came to be known, was a blot on the judiciary. No citizen had any right to move to the courts against any arbitrary action by the government, which resulted in the loss of his/her liberty or even life.

Four of the five judges on the Supreme Court bench came to this conclusion at a time when Mrs. Gandhi's emergency regime was rounding up opposition political figures, trade unionists, student leaders, civil society activists etc. and throwing them into jail for their crime of speaking up against the brutal emergency regime. This violated the most fundamental principles of democracy with impunity.

How it led to the making of draconian law

Chief Justice A N Ray, beholden to Mrs. Gandhi for his appointment as the Chief Justice after superseding other senior judges, chose to disregard the unanimous conclusion advanced by all the other high courts of the country on the same question. They all agreed that, even in the darkest period of political turmoil, a citizen could approach the high courts under Art. 226 of the Constitution for appropriate remedy through writ jurisdiction. CJI Ray chose to overrule all those judgments and closed the gate of the courts to the ordinary citizen of the country demanding justice in very unjust times.

The Judge who didn't budge 

Justice H R Khanna, the lone dissenting judge on the Supreme Court bench that decided ADM Jabalpur, paid the price for his dissent when he was superseded by Justice M H Beg for the post of Chief Justice. 

What's Habeas Corpus

The phrase "Habeas Corpus" means "have the body" and is usually used to challenge illegal detention by the government. Its roots can be traced back to the Magna Carta of England in 1215. When the SC decided to rob the citizens of the remedy through Habeas Corpus, it not only dealt a blow to the principles enshrined in our constitution, but also positioned itself against a legal principle dating back more than 750 years and recognised by all civilised democracies around the world.

How the case unfolded

Mr. Shanti Bhushan, Mr. Ram Jethmalani, Mr. Soli Sorabjee and Mr. Anil Divan argued for the detainees. The government was represented by Attorney General Mr. Niren De. The Attorney General argued that the detainees had no right to move to the court under a writ of Habeas Corpus as all fundamental rights including Article 21 of the constitution were suspended during the emergency. This lead Justice Khanna to ask, "Article 21 also contains life. Would government arguments extend to it also?"

The Attorney General replied, "Even if life was to be taken illegally during the Emergency, the courts are helpless".

The Attorney General would later justify his outrageous defense of the Emergency with these words, "I wanted the robes to rage against that violent view I propounded and come down on such Emergency inhumanity. But, to my surprise, barring Khanna, the other justices heard but did not furiously resist. I felt sad as a jurist but found success as Counsel." 

The Habeas Corpus case has been dubbed ”the biggest blow to the Supreme Court – by the Supreme Court” by the People's Union for Civil Liberties. Justice V R Krishna Iyer, an eminent jurist, called the judgment a disgrace at par with an American judgment that ruled that Negroes were slaves to be owned, not humans who could own. H M Seervai, another eminent jurist, said that through the judgment, the four Supreme Court justices had propounded the maxim "lawlessness be thou our law". 

As for Justice Khanna and his role during the gloomy days of the Emergency, these words from an editorial by the New York Times are more than enough to sum up the tale of one of the darkest cases in India's judicial history:

“If India ever finds its way back to the freedom and democracy that were proud hallmarks of its first eighteen years as an independent nation, someone will surely erect a monument to Justice H.R. Khanna of the Supreme Court. It was Justice Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting from the Court’s decision upholding the right of Prime Minister Indira Gandhi’s Government to imprison political opponents at will and without court hearings... The submission of an independent judiciary to absolutist government is virtually the last step in the destruction of a democratic society, and the Indian Supreme Court’s decision appears close to utter surrender.”

Everything You Need To Know About Aruna Shanbaug, Whose Case Led To India's Euthanasia Debate

This was published in Indiatimes

At some point in your life, through friends, popular media or your school or college, you must have come across the term "mercy killing". The legal term for mercy killing is euthanasia and the consequences of legalising it, have over time, become a heated debate among India's intellectual, political and legal circles. The case that led to this heated debate was that of Aruna Ramchandra Shanbaug v. Union of India.

Aruna Ramchandra Shanbaug was a nurse in the King Edwards Memorial Hospital in Mumbai when she was assaulted by a sweeper of the same hospital while changing her clothes in the hospital basement. During the assault, she was tied with a dog chain around her neck, which cut off oxygen supply from her brain and rendered her in a permanent vegetative state for the next 42 years.

From the day of the assault till the day she died, Aruna could only survive on mashed food. She could not move her hands or legs, could not talk or perform the basic functions of a human being. Journalist-Activist Pinky Virani, who had published a book regarding her case titled Aruna's Story, filed a writ petition under Article 32 before the Supreme Court of India, asking for the legalisation of euthanasia so that Aruna's continued suffering could be terminated by withdrawing medical support. She contended that the patient had been in a permanent vegetative state for the past many years and did not have any chance of recovery at all.

The Supreme Court accepted the petition and constituted a medical board to report back on Aruna's health and medical condition. The medical board, comprising three eminent doctors, reported that the patient was not brain dead and responded to some situations in her own way. They felt that there was no need for euthanasia in the case.

The staff at KEM Hospital and the Bombay Municipal Corporation filed their counter-petitions in the case, opposing euthanasia for Aruna. The nurses at KEM Hospital were quite happy to look after the patient and they had been doing that for years before petitioner Pinky Virani emerged on the scene. 

The court, while delivering its judgment, distinguished between active and passive euthanasia. Active euthanasia means killing a person through the use of lethal substance or force, and passive euthanasia means withdrawing or discontinuing medical support necessary for the continuation of life. The court rejected the plea for euthanasia for Aruna Shanbaug but legalised passive euthanasia in the country.

The reason any debate around euthanasia generates such a heated discussion is because while our constitution recognises the right to life with dignity, it does not recognise the right to die. Therefore, a debate regarding mercy killing is just not a debate regarding the legality of such a wish, but is also a debate about the morality and ethics of such an act. With the concept of euthanasia, law enters that complex territory of medical ethics which has even divided the medical fraternity sharply in the recent past.

Passive euthanasia did not remain legalised for long in India. In Common Cause v. Union of India, it was urged that the judgment of Aruna Ramchandra Shanbaug v Union of India was decided based on incorrect interpretation of the constitution bench's judgment in Gian Kaur v State of Punjab, and therefore it was referred to a larger constitutional bench for review and final judgment.

Aruna Shanbaug died in May 2015, but her case helped in shedding light on an extremely complex issue of medical ethics and law. Euthanasia is currently legal in the Netherlands, Switzerland and the United States. Will India join the list?

We'll have to wait and watch.