Bhima Koregaon : Blind Spots Of Majority Judgment

The dissenting judgement outweighs majority judgement in legal and factual reasoning.

It is quite natural that the same set of facts will be perceived differently by different people. This can happen in judicial process too. Instances are galore,where different judges draw different inferences from the same set of facts presented before them. That is why we see appellate courts reversing trial court judgments on facts and judges on a single bench delivering dissenting opinions on factual findings.

All that is fair, so long as these judgmental differences are with respect to same set of facts. However, if one judgment omits to consider certain relevant circumstances in the factual chain which were considered by the other judgment, it will fall short of a fair judicial process. Failing to consider relevant facts is a test of jurisdictional error employed for judicial review. Also, when there is a split in verdict from a bench, it is ideal that the judgments discuss the points of differences in the other judgment(s) and explain the difference. If there is no such discussion of mutual differences, it will mean that there were no internal deliberations between the judges on the bench.

The majority opinion in the Bhima-Koregaon case is such an instance. The majority opinion expressed by Justice A M Khanwilkar,to which Chief Justice Dipak Misra concurred,totally omitted from consideration certain facts which acted as heavy influencers in the dissent of Justice D Y Chandrachud. While the majority opinion is on set of facts ‘A’, the dissenting opinion is on set of facts ‘A+B’. The majority opinion does not care to state why the additional facts ‘B’, which caused the dissent, are not applicable or totally irrelevant for consideration. The majority is blissfully blind to those facts!

The petition filed by Romila Thappar and four others – who are termed ‘illustrious persons in their field’ by the majority- sought an independent enquiry under a Special Investigation Team set up by the Court to investigate the allegations against five arrested activists on the ground that Maharashtra police was highly biased and motivated in the matter.

The arrests of five activists – Sudha Bharadwaj, Gautam Navlakha, Arun Ferreira, Vernon Gonsalves and Varavara Rao - were made by Maharashtra police as part of investigation in FIR No.4/18 of Vishram Bagh PS (Pune City). The FIR alleged that the incidents of violence in Bhima-Koregaon parade held on January 1, 2018 were incited by inflammatory song and dance performances made at the Elgar Parishad meeting held in Pune on December 31,2017 (Justice Chandrachud noted that two retired judhes were associated with the event: one of them, Justice PB Sawant is a former judge of SC and the other Justice BG Kolse Patil is a former judge of the Bombay High Court). It was also alleged that objectionable books and pamphlets were distributed in the meeting. Justice Chandrachud’s judgment notes the petitioners’ submission that the inflammatory speeches referred in the FIR were actually Marathi translation of verses from the German play “The Good Persons of Szechwan” by Betrolt Brecht. The performance by Kabir Kala Manch during the Elgaar Parishad acted on verses from the German play like “When injustice is done there should be a revolt in the city. And if there is no revolt, it were better that the city should perish in fire before the night falls”. 

With respect to the actual incidents of rioting and violence that occurred during Bhima-Koregaon parade on January 1, an FIR was registered on January 2, as FIR No.2/18 of Pimpri Station against Hindutva right wing leaders Sambhaji Bhide and Milind Ekotbe. Six days later, the FIR concerning this case was registered, alleging that provocative song performances in Elgaar Parishad incited violence. A petition is pending in Bombay HC seeking proper investigation into the first FIR, stating that the main accused Sabhaji Bhide is still roaming free.

Police Adventurism Which Stunned Justice Chandrachud

It is pertinent to note that the petition before the SC was not seeking to establish the innocence of the arrested activists. It was a petition for an independent enquiry by a court appointed SIT. Therefore, the issue before the Court was whether the investigation carried out by Maharashtra police was fair, unbiased and unmotivated.

Justice Chandrachud listed several circumstances, which cast a cloud on the ability of Maharashtra police to carry out fair and impartial investigation. The circumstances were :-

• Within hours after the SC admitted the petition on August 29 and stayed the transit of arrested activists from their homes to Pune, the Joint Commissioner of Pune Police addressed a press conference, stating that police had sufficient evidence.
• On August 31, the ADG of Maharashtra police held a press briefing, where several letters were selectively flashed to media to suggest that the arrested activists were involved in a plot to assassinate the Prime Minister.
• These incriminating letters do not form part of the case diary in the investigation against the activists.
• Months before the arrest of Sudha Bharadwaj, a letter attributed to her was flashed in a news channel on July 4, to create the impression that she had links with Maoist organizations.
• These letters have not been produced in any court of law and are not mentioned in the remand applications filed before the Magistrates.
• ASG Thushar Mehta submitted that there was no basis to link the five arrested activists to the alleged plot to assassinate PM. The ASG also submitted that no investigation in that regard is being carried out against the activists.
• Even though there was no allegation on record that the activists were involved in PM assassination plot, the police made an attempt to create a public impression in that regard through their media briefings.
• The ADG appeared in Truth vs Hype program in NDTV on September 1 to admit that the letters were still undergoing forensic analysis.

Based on the above circumstances, Justice Chandrachud held that there was an attempt by the police to tarnish the reputation of the arrested activists by selectively leaking information to media.

“The use of the electronic media by the investigating arm of the State to influence public opinion during the pendency of an investigation subverts the fairness of the investigation. The police are not adjudicators nor do they pronounce upon guilt. In the present case, police briefings to the media have become a source of manipulating public opinion by besmirching the reputations of individuals involved in the process of investigation. What follows is unfortunately a trial by the media”, he said.

It may be noted that the revelations made by the police fuelled the narrative that the arrested activists were ‘urban naxals’.

Justice Chandrachud also noted that the investigation,which started as an enquiry into Bhima-Koregaon violence, got deflected with allegations of plot to assassinate PM.

Apart from the above, Justice Chandrachud also dealt with procedural lapses in the arrest and glaring discrepancies in investigation. It was undisputed that none of the five arrested activists were present in the Elgaar Parishad meeting. The judge noted that the panch witnesses who attested arrest were persons from Pune who accompanied Pune police to the places of residence of the activists. It was not disputed before the Court that the witnesses were from Pune who travelled as part of the police team which made the arrest. This was held to be in contravention of Section 41B(b) of the CrPC, which mandate that at least one of the arrest witnesses must be a respectable person form the locality. In this regard, it may be recalled that the Delhi High Court had also observed in the petition of Gautam Navlakha that arrest and remand were carried out in blatant violation of procedure. The High Court also noted that the FIR and documents produced before the Magistrate for transit remand were in Marathi, a language unknown to the accused as well as the Magistrate. The Delhi High Court was about to quash the arrest and remand of Navlakha, and Justice Muralidhar had even started dictating the order. But the proceedings were halted in view of the SC intervention in the meantime.

Justice Chandrachud held that these procedural lapses “bear upon the fairness and impartiality of the process which has been followed by the investigating agency”.

The materials produced by the ASG Thushar Mehta to show that police proceeded on the basis of hard evidence were examined by the Court. Justice Chandrachud noted that the incriminating letters were recovered from laptops of others, and on that basis sweeping conclusions are made that the activists were closely linked with Maoist organization, so as to invoke UAPA. According to him, such allegations amounted to “taking liberties with the truth”. He noted the submission that a letter attributed to Sudha Bharadwaj, allegedly written to a Maoist, was recovered from laptop of another person, and had words in Marathi, which was a language not known to her.

A cumulative effect of above circumstances, especially the selective media revelations made by Police to besmirch the reputation of arrested activists by linking them to an assassination plot which had no mention in the case diary, led Justice Chandrachud to hold that “this is a proper case for the appointment of a Special Investigating Team”

When Majority Chose To Be Blind To Police Excesses

What is surprising in the majority opinion is that it makes no reference to the circumstances listed by Justice Chandrachud. The majority judgment authored by Justice Khanwilkar- who rarely writes judgments in prominent matters- simply makes a curt statement that “no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officer”. There is absolutely no reference made to the mischievous press conferences held by Maharashtra police to create an aura that activists were "urban naxals". It is worthy to note that the ASG Thushar Mehta himself admitted in the Court that there is no basis in those allegations. Though the petitioners had filed a rejoinder detailing the instances of press briefings done by police, all those seemed as “vague and unsubstantiated assertion” to Justice Khanwilkar.

The glaring procedural lapses in the arrest- which were noted by Delhi High Court and also Justice Chandrachud- were trivialized by the majority judgment as “some circumstances to question the manner of arrest”.

The majority also concluded that “it is not a case of arrest because of mere dissenting views expressed or difference in the political ideology of the named accused, but concerning their link with the members of the banned organisation and its activities”.This conclusion would have been acceptable, had the overall conduct of the investigating agency been impartial and fair. But the majority judgment did not even care to at least discuss the circumstances which weighed with Justice Chandrachud. Had there been such an exercise by the majority, the cloud cast on investigating agency would have been totally dispelled. The majority however chose to be blind to those circumstances. The silence in the majority judgment regarding the conduct of Maharashtra police is deafening. When strong circumstances exist showing biased nature of investigation, how can the majority accept the materials unearthed in such an investigation, without dispelling those circumstances? Ideally, the majority should have expressly discarded those circumstances by listing out cogent reasons.

When it is tough confronting reason, embrace technicality – the majority judgment follows this evasive approach. That the accused cannot choose investigating agency is a settled principle. However, in exceptional circumstances, the Court can order change of investigating agency, if there are circumstances to show that investigation is biased. In the Narmada Bai v State of Gujarat  case cited by the majority to state the principle that accused cannot choose investigating agency, the SC ultimately ordered investigation by CBI in a case where the local police had already submitted charge sheet. There are also umpteen instances where the SC has constituted SIT.

The dissenting judgment also explained why the judgments relied on by the majority were not applicable in the present case. The dissent explains why this is an extra-ordinary case warranting judicial intervention. "These proceedings have been moved with a specific grievance that the arrest of the five individuals is an attempt by the state to muzzle dissent and that each of them is being prosecuted for being a defender of persons subjected to human rights violations", Justice Chandrachud noted, endorsing the extraordinary situation of the case.

"The conduct of the Pune police in utilising the agency of the electronic media to cast aspersions on those under investigation fortifies the need for an investigation which is fair. When the Joint Commissioner of Police and the Additional Director General of Police cast aspersions in the public media against persons whose conduct is still under investigation, and in disregard of proceedings pending before a judicial forum, it is the duty and obligation of this Court to ensure that the administration of criminal justice is not derailed", he explained why the Police is appearing to be biased against the activists.

Sadly, such a reasoned approach is absent in the majority judgment, which proceeds on narrow grounds of technicalities.The dissenting judgement far outweighs majority judgement in legal and factual reasoning.

Since the majority does not expressly state reasons to show why the circumstances pointed out by Justice Chandrachud do not cast a shadow on the credibility of Maharashtra police, it is difficult for an objective observer to believe that the investigation conducted by them will be fair. The majority had to exercise extra care and diligence, as draconian provisions under UAPA were involved in the case. The failure of majority to do so can only be termed as judicial abdication.

It may be a cruel coincidence that investigation in an FIR arising from a lyrical rhetoric is fuelled more by imagination than by facts. It might be yet another coincidence that grievance against use of police to muzzle political dissent could only appeal to the lone dissenting judge.

(Published in Live Law on September 29)

What To Expect Of The New CJI Ranjan Gogoi?

At times reformist, at times conformist, at times proactive, at times inactive- Justice Gogoi has exhibited contrasting traits in his judicial career so far.

It might be ironic that the new Chief Justice of India Ranjan Gogoi, who is generally perceived as reticent by the legal fraternity, has made the most ground breaking revelation regarding the administration of Supreme Court this year. His participation in the unprecedented judges' press conference held in January 12 was by itself an act of fortitude, considering the fact that he was the next in line to be the Chief Justice of India, after the then CJI Dipak Misra. So the stakes was high for Justice Gogoi. Not only did he endorse the no-confidence expressed by the other three senior judges regarding the administration of Supreme Court under CJI Dipak Misra, he also gave an indication of the immediate trigger for the press conference.  His reluctant, yet unequivocal "yes" to the query by media whether the press conference was about the Loya case, was indeed a ground breaking revelation.

This gave rise to wide speculation whether Justice Gogoi will be superseded for his seeming act of rebellion against Chief Justice Dipak Misra. However, putting end to the biggest judicial suspense of the year, CJI Misra nominated Justice Gogi as the next Chief Justice of India, following convention. Accepting the nomination, the President has appointed Justice Ranjan Gogoi as the next Chief Justice of India.

Contrasting Shades Of Justice Gogoi

That Justice Gogoi has a reformist spirit is evident from the manner in which the bench headed by him is overseeing the appointment of Lok Pal and constitution of special courts for trial of crimes against legislators. The stern observations made by him during the proceedings in these two cases against the governments' inaction indicates that he is someone who means business. His judgment laying down guidelines for the otherwise opaque process for designation as Senior Advocates indicates that he is not averse to uprooting long standing conventions to bring in transparency. The vigour with his bench is supervising the Assam-NRC issue, often locking horns with the Centre by denying it the copy of the report of NRC co-ordinator, and also by pulling up the NRC Coordinator and Registrar General of India for speaking to media on sub judice issues, indicates an activist streak in him.Last May, the judgment authored by him held that Government Bunglows cannot be set apart for ex-ministers, by striking down a UP amendment, observing that a minister, once he/she demits the office, is at par with the common citizen.

So, his statement in the recent Ramnath Goenka Lecture that "sometimes noisy judges are independent journalists are needed as democracy's first line of defence", is consistent with the activist/reformist character shown in above said cases.

Yet, there are certain other instances, which reveal a status-quoist, risk averse side to his mind.

On 24^th January,2018, the bench headed by him dismissed the plea seeking probe by a Special Investigation Team into the attack of JNU student leader Kanhaiya Kumar which took place in the premises of Patiala House Court during February 2016. Reportedly,Justice Ranjan Gogoi observed “We don’t want to flog a dead horse back into life”.  The court felt that nothing survived in the matter and closed it. As much as it is disappointing, it is also surprising that the court ultimately chose to avoid interference, because it was in stark contrast with the very serious consideration the court had been bestowing upon this issue on all previous occasions since beginning. By failing to condemn the shameful act, the Supreme Court rendered its own directions dead letters and an exercise in futility, and condoned a blatant instance of "mob-justice"

Also, when the Bombay High Court's (Aurangabad Bench) action in constituting a special committee to examine whether the movie "Jolly LLB2" scandalised judiciary was challenged in the Supreme Court, the bench headed by Justice Gogoi declined to interfere. This led to the producers of the film succumbing to the extra-legal demands made by the Court-appointed Committee without any statutory basis. Lawyer-author Gautam Bhatia has criticised this approach taken by Justice Gogoi's bench as "judicial evasion", i.e, a process by which Court allows an illegal situation to subsist by avoiding timely judicial decision. Contrast this with the vibrant approach shown by CJI Misra in the later phase of his tenure to protect freedom of expression from any sort of assault from extra-legal sources, as evident from Padmavat, Meesha and Priya Prakash Warrier cases.

Perhaps, it was the zest to shield the image of judiciary which resulted in inaction in "Jolly LLB2" case. However, this zest had led to an unsavoury episode, when Justice Gogoi's bench issued contempt notice to retired Justice Katju for his criticism of Soumya case judgment. Justice Katju was 'requested' by the bench to appear in Court to make his submissions against the judgment on the basis of his comments in Facebook , in the review proceedings against Soumya case judgment. Unsuspectingly, Justice Katju appeared expecting an academic debate on the judgment; but was served with contempt notice, after an ugly spat between him and Justice Gogoi.

The judgment in Soumya case, where a convict who was awarded death penalty by the High Court and Trial Court for rape and murder of a woman during a train journey was acquitted of murder charges, invited wide criticism. It was a case where legal pedantism trumped commonsensical cause and effect approach to a rape-murder case. Justice Gogoi's judgment relied on a hearsay evidence to hold that the victim had jumped out of train on her own, and disjointly treated the grave injuries inflicted by the accused on the victim, instead of considering the cumulative effect of injuries in causing death. Also, the judgment did not explore whether the mortal fear created by the accused caused the victim to jump out of the moving train. The judgment sent shock waves in the society, and triggered heated debates in legal circles. Anyhow, this is an indication that Justice Gogoi is not one to be wavered by public opinion and media pressure.

Certain Notable Judgments.

The deep erudition of Justice Gogoi is evident from the judgments authored by him in some recent Constitution Bench decisions. In May, he headed the Constitution Bench which settled the law that the measure of levy in Central Excise Act cannot be controlled by its nature. He authored the Constitution Bench judgment which settled the law that ambiguity in tax exemption clauses should go in favour of the revenue. It was also recently held by a Constitution Bench headed by him that benefit of reservation will be not be available to members of SC/ST who migrate to other states.

Justice Gogoi had invoked the concept of "constitutional morality" to state that religious rights are subservient to constitutional parameters (Adi Saiva Sivachariyangal Nala Sangam v. State of T.N. ). It was held that the exclusion from appointment as temple archakas solely on the basis of caste was not constitutionally permissible. The Court also emphasised the importance of Agamas and held that appointment has to be in consonance with Agamas. It was held that so long as the injunctions in Agamas were not contrary to Constitutional parameters, they have to be deferred to.

Within a few months of his appointment as SC judge in 2012, Justice Gogoi had found himself taking a minority position in contrast to that taken by the Chief Justice Altamas Kabir in the challenge to election of Pranab Mukherjee as President.

Pranab Mukherjee’s election as President in 2012 was challenged by Former Lok Sabha PA Sangma  on the grounds that he had been holding an ‘office of profit’ at the time he filed his nomination papers, contrary to the Constitution. A five-judge Constitution Bench including Justice Gogoi was set up to first decide whether the petition was maintainable and needed to have a full hearing.The then CJI and two other judges held that there was no need for a regular hearing, because the offices Mukherjee was alleged to have held at the time – chairman of the Indian Statistical Institute (ISI) and leader of the House in the Lok Sabha – would not be offices of profit in any case. However, Justice Gogoi and Justice Chelameswar dissented.

Justice Gogoi also headed the bench which reviewed the earlier ban imposed by the SC against publication of photographs of politicians in Government advertisements, except those of the Prime Minister. The ban was relaxed to include governors, chief ministers, and where relevant, a specific cabinet minister.

Justice Gogoi headed the bench which held that names of holy books cannot be claimed as trademarks. "The answer to the question as to whether any person can claim the name of a holy or religious book as a trade mark for his goods or services marketed by him is clearly ‘NO’,” he observed. His judgment in the Toyota Prius case, regarding trademark protection for international brands, is an enlightening read to understand the principles of universality and territoriality in trademark law.

The SC bar perceives him as a tough judge having a no-nonsense approach. He is known to be friendly and encouraging towards juniors. He is also perceived as sympathetic to the causes of poor and underprivileged.

What Lies Ahead?

During his tenure as CJI till November 18,2019, he will have to deal with thorny administrative issues like finalization of the Memorandum of Procedure for appointment of judges. One could also expect that he will use his powers as the "maser of roster" to resolve issues in constitution of benches and allocation of cases, especially so since this was one of the major issues which caused discontentment amongst senior judges against CJI Misra.

His  determined character gives an impression that there will be many changes in SC rules and administration. It was the bench headed by Justice Gogoi which passed the order facilitating the establishment of child care facilities. Recently, he was seen in the company of three other  judges making a surprise inspection of SC corridor and premises.

He might also have to deal with the Ram Janmbabhoomi and Article 35A cases, which will assume political significance in the backdrop of Lok Sabha elections 2019.

At times reformist, at times conformist, at times proactive, at times inactive- Justice Gogoi has exhibited contrasting traits in his judicial career so far. Therefore, it will be hard to predict how he will handle the mantle. If his reformist spirit  prevails, it will bring systemic changes for over all betterment of justice delivery. If one goes by his statements in the Ram Nath Goenka Lecture that judiciary needs a revolution than a reform, Justice Gogoi seems to be harbouring a revolutionary spirit as well. It is hoped that his future actions as CJI will be guided by this spirit.

(Published in Live Law on October 3

Will The Real CJI Misra Stand Up?

"A man has as many social selves as there are distinct groups of persons about whose opinion he cares. He generally shows a different side of himself to each of these different groups", William James, American Philosopher & Psychologist.

Chief Justice of India Dipak Misra is demitting office after a tumultuous tenure, leaving behind a mixed legacy. Over his judicial career, CJI Misra was seen stating different things at different times, often contradictory to each other, lending credence to the theory that an individual is a colony of different selves.

For example, this is what Justice Misra said in November 2016 in the national anthem case:

"Be it stated, a time has come, the citizens of the country must realize that they live in a nation and are duty bound to show respect to National Anthem which is the symbol of the Constitutional Patriotism and inherent national quality. It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. The idea is constitutionally impermissible"(emphasis supplied).

While ordering compulsory playing of national anthem in cinema halls, Justice Misra said that individually perceived notion of rights are not permissible.

Cut to 2018, we see CJI Misra offering paeans to individual autonomy and uniqueness in Navtej Singh Johar case, in a turnaround from the original position that individually perceived notion of rights was not constitutionally permissible.

"Irreplaceability of individuality and identity is grant of respect to self. This realization is one‘s signature and self-determined design. One defines oneself. That is the glorious form of individuality. Autonomy is individualistic. It is expressive of self-determination".

In 2015, while holding that poetic license does not extend to maligning historically respected figures like Gandhi, Justice Misra observed :

"The question would be whether the dramatist can contend that he has used them as symbolic voices to echo the idea of human fallacy and it's a creation of his imagination; and creativity has no limitation and, therefore, there is no obscenity. But, there is a pregnant one, the author has chosen historically respected persons as medium to put into their mouth obscene words and, ergo, the creativity melts into insignificance and obscenity merges into surface even if he had chosen a "target domain". He in his approach has travelled into the field of perversity and moved away from the permissible "target domain", for in the context the historically respected personality matters".

Using similar arguments, his judgment in 2016 upheld the constitutionality of criminal defamation under Section 499/500 IPC.

But in 2018, we see a different self of CJI Misra, who extends maximum possible protection to creative liberties,urging those who felt offended by writings to elevate themselves as a co-author to appreciate the merit of the work. While declining to ban the book "Meesha", Justice Misra observed :

"A creative work has to be read with a matured spirit, catholicity   of   approach,   objective  tolerance  and   a   sense   of acceptability founded on reality that is differently projected but not   with   the   obsessed   idea   of   perversity   that   immediately connects one with the passion of didacticism or, for that matter, perception   of   puritanical   attitude.   A   reader  should   have   the sensibility   to   understand   the   situation   and   appreciate   the character and not draw the conclusion that everything that is written is in bad taste and deliberately so done to pollute the young minds. On   the   contrary,   he/she   should   elevate himself/herself as a co-walker with the author as if there is social   link   and   intellectual   connect"(emphasis supplied).

An evaluation of his judicial career will show Justice Misra de-constructing and reconstructing his dispositions to assume the role of a fierce protector of individualism and liberties, mostly during his tenure as the CJI. Certainly, it is a sign of robust intelligence that one is able to act freely as per demands of the situation, contradicting and varying one’s own previously held views. That is why Oscar Wilde once famously said, "Consistency is the last refuge of the unimaginative".

Is this transformation a result of pure shift in thought or due to extrinsic factors? In this context, it is relevant to refer to the narrative that the liberal mantle adopted by the Supreme Court in mid-eighties was its atonement for the sins of emergency[1]. It is said that Justice P N Bhagwati’s somersault as a liberal crusader of social justice was mostly impelled by his need to expunge the image as someone who succumbed to the executive will during emergency, particularly in the ADM Jabalpur case[2]. Are there similar parallels in the image makeover of Justice Misra?

Volatile Tenure

Justice Dipak Misra’s tenure as CJI from August 28,2017 will be marked as one of  the most volatile phases of the Supreme Court. He would wish to obliterate a lot of events during his tenure from pubic memory, as they are unsavoury to his image.  The most damaging is the “medical college bribery scam”, which surfaced following CBI arrest of Justice I M Quddusi, retired judge of Orissa HC, on the allegation that he accepted bribe to fix a case concerning medical college of Prasad Education Trust at the Supreme Court. The issue got aggravated when it was known that CJI Misra had headed the bench which dealt with the matter. Two petitions were filed in the Supreme Court – one by CJAR & other by Advocate Kamini Jaiswal- seeking an SIT probe into the allegations.

A division bench headed by Justice Chelameswar termed the allegations “grave and serious” and referred the matter to be decided by a bench constituted by five senior-most judges, excluding the CJI. On November 10, the very next day, this order passed by the two-member bench headed by Justice Chelameswar was annulled by a hurriedly formed Constitution Bench led by CJI in a raucous hearing session marred by unprecedented drama. This was the fastest ever Constitution Bench constituted in the SC history, with notice about sitting at afternoon published only at noon. Initially, a bench of seven judges was supposed to hear the matter; later, the composition was reduced to five judges, for reasons inexplicable.

"Master of Roster" Controversy

This marked the beginning of “Master of Roster Controversy”. The annulment order of November 10 was passed by the five judges bench headed by CJI on the ground that CJI was the “master of roster” and hence a division bench headed by the second senior judge could not have constituted a bench to hear the matter. The question whether CJI could constitute a bench to consider a matter concerning allegations against the CJI himself was conveniently left unanswered by the November 10 bench. The unusual order passed on November 10 led to debates on the role of CJI as the “master of roster”.

Many in the legal field feel that these events acted as a catalyst for the extra ordinary press conference of Justice Chelameswar, Justice Gogoi, Justice Lokur and Justice Kurian Joseph on January 12. During the news conference, Justice Chelameswar said that the administration of the Supreme Court is not in order and many things which are less than desirable have happened in the last few months." Justice Chelameswar said: "We owe a responsibility to the institution and the nation. Our efforts have failed in convincing CJI to take steps to protect the institution."

The press conference highlighted before the general public for the first time the issues regarding arbitrariness in  allocation of cases by CJI. In the letter by the four judges, it was stated as follows:

"There have been instances where cases having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justice of this Court selectively to the benches “of their preference” without any rationale basis for such assignment. This must be guarded against at all costs".

Impeachment Motion

CJI Dipak Misra is the only CJI so far to have faced the threat of impeachment motion. Seventy one opposition MPs of Rajya Sabha moved an impeachment motion against him, over allegations of medical college bribery scam, misuse of ‘master of roster’ power, manipulation with orders issued on administrative side, and also an old case related to furnishing of false affidavit seeking land assignment from Orissa Government. The impeachment motion was rejected by Rajya Sabha Chairman at the threshold. The petition filed against the rejection motion was listed before a bench of five judges of SC. It was not clear who constituted the bench, and how a bench of five judges happened to be constituted at the first instance to hear a fresh petition. The petition was withdrawn after the petitioner’s counsel Kapil Sibal declined to make submission before the five judges’ bench without obtaining clarity as to how the bench happened to be constituted.

Judicial Appointments.

It is also widely felt that during his tenure CJI Misra was not standing up to the undue pressures exerted by the executive in the administrative affairs of judiciary. There was an instance where the Central Government was making interference with the appointment of a judge to the Karnataka High Court, bypassing the SC collegium. The issue got highlighted only when Justice Chelameswar wrote a letter condemning the government interference, and called for a full court meeting to discuss the issue.

Repeated over-turnings of SC collegiums’ re-recommendations by Central Government was a regular fare during his tenure. Though the re-recommendations are binding on the Centre, many of them were ignored. Chief Justice Misra acted pliant, even in the face of such brazenness. When the recommendation of Justice K M Jospeh was returned by the Centre, through an unprecedented act of splitting up of Collegium recommendations, firm reactions were not forthcoming from the CJI Misra. One may recall the strong stand taken by former CJI R M Lodha, when similar attempts were made by the Centre with respect to recommendation of Gopal Subramaniam. With regard to Justice K M Joseph, CJI Misra did not act promptly to reiterate his name, and adjourned the resolution on several occasions. After high suspense, Justice Joseph's name was recommended in August 2018, but along with two other judges, leading to an avoidable fiasco over his seniority.

He also could not resolve the stalemate over finalisation of Memorandum of Procedure for appointment of judges.

While previous CJIs like Justice Lodha, Justice Thakur, and Justice Khehar have been very active in voicing concerns about delay and interferences in judicial appointments, CJI Misra cannot be perceived as someone who actively addressed exceeding executive interference. Under his tenure the SC Collegium has been biting the bullets of repeated executive snubs, sending disconcerting signals about judicial independence.

At the same time, CJI Misra will be remembered for his initiative for publicising collegium resolutions and. bringing in semblance of transparency in collegium meetings.

Liberal-Progressive Judgments

Chief Justice Misra will be certainly remembered for many of his progressive judgments on individual liberties and free speech. CJI Misra’s judgments in Hadiya and Khap Panchayat cases unequivocally state that religious or societal forces do not have any say in an individual's choice of partner, emboldening an individual to love and marry a partner of his/her choice, defying societal and communal pressures. His judgment in Navtej Singh Johar struck down Section 377 of IPC to hold that love should not be circumscribed by gender.  In the judgments declaring the right to die with dignity and also in the verdicts decriminalising homosexuality and adultery, he expounded the theme of “individual autonomy”.

That constitutional morality should guide governance was held by him in the AAP vs Delhi LG case; and that constitutional morality will supersede cultural morality was held in the Sabarimala case.

His judgments in Padmavat, Priya Warrier and Meesha cases reaffirm the guarantee of constitutional protection to creative liberties from perceived offences felt by groups of people.

He should be credited for affirming the transformative nature of Constitution which seeks to transform societal mores in tune with constitutional morality.

CJI Misra’s deep concern for the protection of rule of law can be gathered from his guidelines against mob lynching and public vandalism.

There is a consistent thread of jurisprudence rooted in Constitutional Morality running through all these decisions.

Institutional Reforms

Certain institutional reforms heralded by CJI Misra are noteworthy. He took the decision to publicise collegium resolutions, and to upload them in SC website, to change the opaque nature of collegium meetings. Also, he stopped the practise of 'mentioning' by Senior Advocates, and ordered that it should be done only by Advocates on Record, as per their turn in queue. These decisions show that he is open to change.

He also took the decision to permit carrying mobile phones by  journalists for live reporting. The decision taken by the bench presided by him to allow video telecast of court proceedings is also a ground breaking reform.

In this context, it may also be noted that it was the bench presided by him which ordered that FIRs should be uploaded online by police.

Debatable Judgments In Politically Sensitive Cases.

While CJI Misra should be commended for his progressive judgments and institutional reforms, it is tough to say whether similar zeal was exhibited by him in cases involving political stakes of the ruling front. The major examples are the Loya and Bhima Koregaon cases.

The grievance regarding allotment of Loya case was one of the reasons which triggered the judges’ press conference. The Loya case was later withdrawn by the CJI to his own bench from the bench headed by Justice Arun Mishra. The judgment in Loya case, authored by Justice D Y Chandrachud for the bench headed CJI Misra, left gaping holes of unanswered questions and will remain a low point in the Indian judicial history.

In the Bhima Koregaon case, CJI Misra concurred with the judgment authored by Justice Khanwilkar to turn down plea for SIT probe. However, the majority judgment has several blindspots as it fails to address many relevant issues which were considered by the strongly worded dissent of Justice Chandrachud.

Both the Loya case and Bhima Koregaon case are the ADM Jabalpur moments of modern day SC.

CJI Misra, who is otherwise voluble and proactive in cases concerning civil liberties, chose to maintain inscrutable silence in these two cases.

Giving Room For Intra-Court Appeals

Some of CJI Misra's actions in interfering with orders passed by other Division Benches border on judicial impropriety.

On 27^th October,2017, a Division Bench comprising Justice A.K Goel and Justice U.U Lalit sought the Government’s response, in a petition filed by R.P. Luthra, regarding the steps being taken to finalize the MoP to appoint judges. R.P. Luthra’s petition, later, did not get posted before the same Division Bench that heard the matter first; instead, it was posted before a three judge-bench presided by the CJI. Even the hearing date fixed by the earlier DB was advanced. The CJI-Bench dismissed the matter, recalling the order passed by the Division Bench on 27^th October.

The manner in which the CJI's bench dealt with Section 498A matter is contrary to usual procedure. When a PIL seeking appointment of women members in the Family Welfare Committee proposed by the Division Bench in Rajesh Sharma case was mentioned before the bench of CJI Misra, he expressed disapproval of Rajesh Sharma guidelines, and sought to revisit them in a 2015 PIL filed for strict action under Section 498A IPC. The proceedings were in effect an intra-court appeal against Rajesh Sharma directions. Though the ultimate result of the process - annulment of directions in Rajesh Shamra constituting Family Welfare Committees to scrutinize domestic violence complaints- was widely lauded, the process in which the same was done fails to meet standards of propriety.

Strategic Image Makeover?

The results of the liberal-progressive narrative launched by CJI Misra through his vision of transformative constitution are certainly welcome. However, the controversial background of his judicial career makes one wonder whether it was a strategy for an image makeover, as attempted by the likes of Justice Bhagwati.

A careful examination of the bench composition of the Constitution Bench makes one wonder whether the composition was contrived to force intended results. For example, the benches which dealt with Section 377, Section 497 and Sabarimala cases had Justice Nariman and Justice Chandrachud, who are known to have liberal views.  The Aadhaar bench had Justice A.K Sikri and Justice Ashok Bhushan, who had upheld PAN-Aadaar linkage in Binoy Viswom case earlier. Justice A M Khanwilkar, who is known to be a passive supporter of CJI Misra, was a common presence in all these benches.

The reasons for omitting Justice Nariman, or Justice Bobde and Justice S K Kaul ( who had shown a fine grasp of technical issues related to internet privacy and data protection in Puttuswamy case) from Aadhaar bench are not known. It is also mysterious why Justice Chelameswar, who was part of the original bench which heard the Aadhaar matter and also the privacy case, was not part of the bench which ultimately decided the issue.

Deep probe of these questions are blocked by the declaration made by the bench of CJI that CJI is an institution in himself, who has complete powers to constitute benches as the master of the roster.

So how will history remember CJI Misra?

As a CJI on whom no-confidence was expressed by an open rebellion of four senior judges?

Or, as a CJI who heralded a liberal-progressive narrative of constitutional morality and individual autonomy?

As a CJI who faced allegations of bribery, mismanagement of SC administration and arbitrary allocation of cases of political importance and threat of an impeachment motion?

Or, as a CJI who acted on the transformative vision of constitution to reform social mores and norms superseding conventional morality?

As a CJI who did not impinge on the interests of ruling front in politically sensitive issues, and gave elbow room for the executive to meddle with judicial appointments ?

Or, as an erudite CJI with deep knowledge in all branches of law who was worked round the clock industriously to pen several landmark judgments to protect free speech ,creative liberties and rule of law?

Since it is a tough call to make, one can only go by CJI Misra’s quote of Goethe in Navtej Johar judgment : "I am what I am, so take me as I am".

Footnotes

[1] “An atonement gone too far”, by Arghya Sengupta in The Hindu

[2] “P N Bhagwati’s Legacy : A Controversial Inheritance”, by Anuj Bhuwania in The Hindu

(Published in Live Law on October 1

Referred by Los Angeles Times also)

Magisterial Lapses : When Remand Requests Are Blindly Rubber Stamped

Two recent cases of glaring magisterial lapses deserve discussion.

The recent case of Lois Sofia is disturbing. Sofia, a 28 year old student, was remanded to 15 days judicial custody for raising anti-BJP slogans in the presence of TN BJP Chief Tamilisai Soundarajan, while de-boarding an aircraft. Her arrest and subsequent remand happened in the FIR registered on the basis of Soundarajan's complaint.

Last week, a Magistrate in Delhi authorised Maharashtra police to take Gautham Navlakha to Pune, even in absence of translated copies of FIR and case diary which were in Marathi. We have also seen instances in past where persons have been remanded to judicial custody for liking Facebook posts. These instances make one examine the constitutional function of Magistracy.

The fact that ’magistrate’ is the only judicial authority which finds explicit mention in Part III of the Constitution of India(apart from the reference to Supreme Court in Article 32) underlines its importance. As per Article 22(2), every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

The provisions in Code of Criminal Procedure reinforce the role of Magistrate by restating the Constitutional mandate through Sections 57 and 167. As per Section 167(1), detention of a person beyond the period of 24 hours can be sought for only if 'there are grounds for believing that the accusation or information is well-founded'.

The constitutional protection would become meaningless if the Magistrate was merely to act mechanically without applying  judicial mind to see whether the arrest of the person produced before him was in accordance with law. The power to remand during investigation is to be exercised 'judicially' with greatest care. While doing so, the Magistrate is not to act like a 'post office', mechanically forwarding the accused to the police custody by accepting the police version. This has been explained by the Supreme Court in Manubhai Ratilal Pater Tr.Ushaben vs. State of Gujarat (2013) 1 SCC 314 as :

"The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand..

This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner "(emphasis supplied)

However, there are cases where detention is authorised in a routine, casual and cavalier manner.  It may be noted that there is no obligation cast on the police to arrest a person as soon as he is named as accused in an FIR. Rather, law mandates that arrest should be made only when it is absolutely necessary. This position has been clarified as per amendment brought to Cr.P.C in 2009, which substantively changed Section 41. As per the amended Section 41, arrest for offences which are punishable with imprisonment up to seven years can be made only in exceptional circumstances.  According to Section 41(1)(b)(ii), CrPC, the police officer has to record satisfaction in writing that arrest in such cases is necessary :-
(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured.

While passing remand orders in such cases, where the maximum punishment for the offence in the FIR is imprisonment up to seven years, the Magistrate has to be extra-cautious in ensuring that conditions under Section 41(b) are fulfilled. This has been explained by the Supreme Court in Arnesh Kumar v. State of Bihar AIR 2014 SC 2756 :

"If the arrest effected by the Police Officer does not satisfy the requirements of S.41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the Police Officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under S.41 CrPC has been satisfied and it is only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order.

It shall never be based upon the ipse dixit of the Police Officer, for example, in case the Police Officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the Police Officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the Police Officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the Police Officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny" (emphasis supplied).

The import of the said provisions is that normally where an accused has been named in the FIR, and the offence is punishable with upto 7 years imprisonment, the arrest of the accused may not be necessary at the initial stage and his attendance may be secured by issuing a notice to him to appear before the police officer under S.41A CrPC. In such cases it would be advisable to arrest the accused only after sufficient evidence of his involvement in the crime has been collected and the charge sheet needs to be submitted.

Coming back to the case of Sofia, as per reports, the offences punishable under IPC Sections 505 (statements conducing to public mischief), 290 (public nuisance) and Section 75 of the Tamil Nadu City Police Act are included in the FIR against her. The maximum punishment for the offences alleged against her is imprisonment up to 3 years, under Section 505 IPC ( assuming that the provision is attracted to a case of raising a slogan against ruling party). Therefore, the police had to give special reasons for justifying her straight-away arrest.

It was also incumbent on the part of the Magistrate to explain why her custody is inevitable for the investigation of the case relating to raising slogans. Failure to do so would be abdication of judicial responsibilities. When the seemingly secessionist slogan "Khalistan Zinadabad" has been held not be be offensive by the Supreme Court(Balwant Singh v State of Punjab AIR 1995 SC 1785), it is incomprehensible how anti-government slogans can constitute any punishable offence.

The transit remand order in the Bhima-Koregaon arrest also raised certain troubling questions. The Delhi High Court had doubted the validity of remand order issued by Chief Metrapolitan Magistrate, Saket granting custody of Gautham Navlakha to Maharashtra Police for transit to Pune. The High Court noted that the FIR and case diary were prepared in Marathi, and the translated copies of the same were not made available to Magistrate. The bench of Justice Muralidhar and Justice Vinod Goel wondered how the magistrate granted transit remand without perusing the arrest documents in the language (Marathi) of a different state, and expressed that the CMM should have been extra careful applied judicial mind before ordering remand. It was also contended in the case that that the witnesses of the arrest memo were persons who were brought by Maharashtra Police from Maharashtra, and that no local persons witnessed the arrest. This is in violation of the guidelines of the Supreme Court D.K Basu case, which were later incorporated in Cr.P.C in Sections 41B(b)(i).  These glaring violations escaped notice of the CMM while granting transit remand.

The Magistracy has a solemn function to perform in the protection of personal liberties. They are the ‘first line of defence’ against assaults on citizens through arbitrary police actions. It was held by Allahabad High Court way back in 1959 that the Magistrate is not simply to 'rubber stamp' the prayer of the police officer seeking remand of the accused(Bir Bhadra Pratap Singh v D M Azamgarh AIR 1959 All 384). It may not be within the capabilities of everyone to approach higher constitutional courts against arbitrary and illegal arrests. Each moment of illegal detention adds indelible scars on the detenu's mind. Therefore, it is important for the Magistrates to be conscious of their larger constitutional role to check state excesses against personal liberties.

(Update : Sofia was released on bail, unconditionally,)

Published in Live Law on September 4.  

Oscar Wilde's Moment Of Redemption By SC In Sec.377 Judgment

The literary genius was labelled a ‘sex pervert’ by a 1976 SC judgment.

Oscar Wilde, famous English writer and champion of individualism, was unfortunately branded a ‘sex pervert’ by the Supreme Court in a 1976 judgment. It was the judgment in R K Agarwal v State of Orissa AIR 1976 SC 1774, where the Supreme Court was dealing with an appeal filed by a 70 year old man convicted under Section 376 IPC for rape of a 6 year old girl. While rejecting his prayer for reduction of sentence in consideration of his advanced age, the Court, speaking through Justice  V R Krishna Iyer, observed that jail term in his old age could kindle in him a new flame of search for the truth and make him a finer person.  As an example that prison term could bring in reformation, it was stated “No one is too old to become good and 'De Profundis' was written in prison by a sex pervert who was also a literary genius”.

The literary genius referred here is Oscar Wilde, who wrote “De Profundis” while serving prison term after conviction under the charge of “gross indecency with other men”. During the prime of his literary success in London, Wilde had a homosexual affair with Lord Alfred Douglas, which became a public scandal. Wilde was prosecuted for his homosexual affection under the Offences Against Persons Act 1861 for 'sodomy' and 'gross indecency'. During the trial, Wilde defended his homosexual relationship, with impassioned arguments on individual autonomy and sexual agency. He had written a poem “Two Loves” with the verse, “Love that dare not speak its name”, about his love for Lord Douglas.  The poem was cited as an evidence of his “indecency”’. The following extract from the trial is worth reading.

Charles Gill (prosecutor): What is "the love that dare not speak its name?

Wilde: "The love that dare not speak its name" in this century is such a great affection of an elder for a younger man as there was between David and Jonathan, such as Plato made the very basis of his philosophy, and such as you find in the sonnets of Michelangelo and Shakespeare. It is that deep spiritual affection that is as pure as it is perfect. It dictates and pervades great works of art, like those of Shakespeare and Michelangelo, and those two letters of mine, such as they are. It is in this century misunderstood, so much misunderstood that it may be described as "the love that dare not speak its name," and on that account of it I am placed where I am now. It is beautiful, it is fine, it is the noblest form of affection. There is nothing unnatural about it. It is intellectual, and it repeatedly exists between an older and a younger man, when the older man has intellect, and the younger man has all the joy, hope and glamour of life before him. That it should be so, the world does not understand. The world mocks at it, and sometimes puts one in the pillory for it.

But his exhortations were not received well by the Court and the society, which were bogged down by prudish notions of Victorian morality.  He was sentenced for two years of imprisonment with hard labour in 1895. While serving his prison term, Wilde wrote “De Profoundis”, a poignant work on the sufferings of life, with deep spiritual undertones. “To regret one’s own experiences is to arrest one’s own development. To deny one’s own experiences is to put a lie into the lips of one’s own life. It is no less than a denial of the soul.”, he said in the work. Prison crushed his mind and body, and he died at the age of 46, impoverished and broken.

A man with such profound thoughts was unfortunately bracketed with a child-rapist by the Supreme Court in R.K Agarwal. To his credit, Justice Krishna Iyer has quoted Wilde positively in a later judgment. In Maru Ram vs. Union of India AIR 1980 SC 2147, while determining the term of sentence of life imprisonment in the backdrop of Section 433A CrPC, Justice Iyer quoted Oscar Wilde from the poem The Ballad of Reading Gaol, to highlight the despair caused to prisoners by uncertainty about the length of their term. The statement in R. K Agarwal could have been an inadvertence; however, it became a judicial stamping of Oscar Wilde as a “sex pervert”.

The thoughts expressed by Oscar Wilde on bodily autonomy and sexual agency found resonance with the Supreme Court in Navtej Johar while scrapping Section 377 IPC to the extent it applied to consenting adults. The judgements of Justice Nariman and Justice Chandrachud quoted Wilde extensively.

Justice Nariman starts his judgment by stating : “The love that dare not speak its name” is how the love that exists between same-sex couples was described by Lord Alfred Douglas, the lover of Oscar Wilde, in his poem Two Loves published in 1894 in Victorian England. Justice Nariman also details the trial of Oscar Wilde, and notes that this case led to led to law reform in the U.K to decriminalize homosexuality, 60 years later.  The statement made by Oscar Wilde in the trial, in response to prosecutor’s query about his poem, has been quoted in its entirety by Justice Nariman.

Justice Chandrachud too makes a mention of “the love that dare not speak its name”, in his judgment. He cites Oscar Wilde as one of several eminent persons, who had to face prosecution for homosexuality. Justice Chandrachud’s observation in the judgment that “Sexuality must be construed as a fundamental experience through which individuals define the meaning of their lives”, echoed the thoughts expressed by Wilde through his life and writings.

Justice Indu Malhotra’s statement that history owes an apology to the members of homosexual community for the ignominy and ostracism caused to them by law, can be taken as an apology to Oscar Wilde as well, for the unfortunate label put on him by the Court four decades ago.

So, in one sense,Navtej Singh Johar redeems Oscar Wilde.

Post Script : The UK passed a law in 2013, granting posthumous pardon to about 50,000 gay men who were convicted and sentenced for homosexuality, including Oscar Wilde.

Published in Live Law on September 7

Celebration Of Sexual Agency : Justice Chandrachud's Soulful Judgment In Section 377 Case

"Sexuality must be construed as a fundamental experience through which individuals define the meaning of their lives"

Deeply moving and empathetic, Justice Chandrachud's judgment in the Section 377 case makes for a compelling read. Rather than legalese, the judgment is brimming with a profound understanding of the human condition and of the urge of an individual to find meaning through self-expression by staying true to one’s core identity.

The judgment deconstructs Section 377 in a larger perspective, to conclude that it is not merely stifling expression of sexuality which is in variance with the dominant “hetronormative” narrative, but is advancing sexual stereotypes and cementing traditionally assigned gender roles. On this premise, Section 377 is held as causing discrimination on the ground of ‘sex’, so as to infringe Article 15(1) of the Constitution. While doing so, the judgment in Nargesh Meerza which took a narrow view of sex-based discrimination was overruled. Moving further, the judgment holds that Section 377 IPC infringes ones’ right to intimacy, which has been held to be a facet of right to privacy under Article 21, observing that “consensual sexual relationships between adults, based on the human propensity to experience desire, must be treated with respect”

The judgment recognizes the need to remedy the “tragedy and anguish” inflicted by the Section. The history of the section is traced to identify its roots in Judeo-Christian notions of morality, which found reflection through a colonial legislation. The judgment draws power from the exhortations of Dr.Martin Luther King against the ‘doctrine of wait’, which advocates that non-conformists should wait till the mainstream understands their way of life, before disturbing established social mores. The sexual minorities have waited long, but nothing changed.

Unreasonable classification based on ‘Order of Nature’.

The section was held to be violative of Article 14 of the Constitution, as it is based on unreasonable classification. The 2013 SC judgment in Suresh Kumar Koushal had held that there was no unreasonable classification, as “those who indulge in carnal intercourse in the ordinary course and those who ... [do so] against the order of nature constitute different classes”. This view was criticised as a formalistic application of Constitution. Justice Chandrachud identified the base of classification in Section 377 as “order of nature”, an indeterminable factor. “What is ‘natural’ and what is ‘unnatural’? And who decides the categorization into these two ostensibly distinct and water-tight compartments? Do we allow the state to draw the boundaries between permissible and impermissible intimacies between consenting adults?”, the judgment asked (Para 28, Page 294).

Developing from that premise, it was held that there was logical fallacy in ascribing legality to perceived natural acts on the basis of majority practise. As human being evolved, there has been a shift from reproductive instinct to erotic instinct, which may not be strictly ‘natural’.  And all that is not natural, need not be illegal. The judgment quotes an interesting observation from Brandon Ambrosino that, “Many of the things human beings value, such as medicine and art, are egregiously unnatural. At the same time, humans detest many things that actually are eminently natural, like disease and death”(Page 296).

 “Section 377 is based on a moral notion that intercourse which is lustful is to be frowned upon.It does so, on the basis of a social hypocrisy which the law embraces as its own. It would have human beings accept a way of life in which sexual contact without procreation is an aberration and worse still, penal. It would ask of a section of our citizens that while love, they may, the physical manifestation of their love is criminal. This is manifest arbitrariness writ large”, (Page 298)

Section 377 reveals only the hatred, revulsion and disgust of the draftsmen towards certain intimate choices of fellow human beings.”, held the judgment(Page 301).

Discrimination based on sexual orientation violates Article 15(1)

A significant finding of the judgment is that discrimination based on ‘sexual orientation’ amounts to sex-based discrimination, which is prohibited under Article 15(1). While reaching this conclusion, the judgment overturned the precedent Air India v.Nargesh Meerza (1981) 4 SCC 335. In the said case, service conditions prescribing different age of retirement for air hostesses, and that pregnancy will attract termination etc. were not held to be discriminatory with respect to male colleagues on the ground that females and males in service of aircraft constituted different cadres, and hence were not comparable. It was held there that where persons of a particular class, in view of the “special attributes, qualities” are treated differently in ‘public interest’, such a classification would not be discriminatory

Justice Chandrachud criticised this view as missing to notice the latent stereotypical notions of the differences between men and women which are then used to justify the discrimination. Nargesh Meerza was held to be incorrect noting, “A discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a class constituted by the grounds prohibited in Article 15(1). If any ground of discrimination, whether direct or indirect is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex”(para 41, page 313).

This was applied in the present case by identifying the root premise operating behind Section 377 – to reinforce gender stereotypes. It was held that Section 377 was based on ‘heterosexism’ and ‘gender binary’.

“If individuals as well as society hold strong beliefs about gender roles – that men (to be characteristically reductive) are unemotional, socially dominant, breadwinners that are attracted to women and women are emotional, socially submissive, caretakers that are attracted to men – it is unlikely that such persons or society at large will accept that the idea that two men or two women could maintain a relationship. If such a denial is further grounded in a law, such as Article 377 the effect is to entrench the belief that homosexuality is an aberration that falls outside the ‘normal way of life.’” (para 44, page 319)

It was noted that a heterosexist society expects and requires men and women to engage in only opposite-sex sexual relationships. “One cannot simply separate discrimination based on sexual orientation and discrimination based on sex because discrimination based on sexual orientation inherently promulgates ideas about stereotypical notions of sex and gender roles” (para 46, page 321)

It was also held that statutes like Section 377 give people ammunition to say “this is what a man is” by giving them a law which says “this is what a man is not.” The existence of the provision nonetheless facilitates it by perpetuating homophobic attitudes and making it almost impossible for victims of abuse to access justice. Thus, the social effects of such a provision, even when it is enforced with zeal, is to sanction verbal harassment, familial fear, restricted access to public spaces and the lack of safe spaces.

Section 377 criminalises identities

A notable feature in the approach of Justice Chandrachud is that he did not dwell much on the argument that Section 377 impacts heterosexual couples as well, as regards their involvement in sexual acts which are non-penovaginal. He emphatically asserted that the impact of the section was on sexual minorities (Para 44, Page 315). Though the provision is ‘facially neutral’ the effect of the provision is to efface specific identities.

“While facially Section 377 only criminalizes certain “acts”, and not relationships, it alters the prism through which a member of the LGBTQ is viewed. Conduct and identity are conflated.The impact of criminalising non-conforming sexual relations is that individuals who fall outside the spectrum of heteronormative127 sexual identity are perceived as criminals”(Para 56, Page 334)

Fresh perspective on right to privacy of sexual minorities

The judgment brought in a fresh perspective to analyse the right to privacy of sexual minorities in the light of Puttaswamy judgment. While sexual orientation has been held as a facet of right to privacy, to push sexual minorities to their private spaces alone will amount to reinforcing the closet in which they are in. The judgment powerfully stated that the “closet has to be confronted”. Confronting the closet would entail “reclaiming markers of all desires, identities and acts which challenge it.” It would also entail ensuring that individuals belonging to sexual minorities, have the freedom to fully participate in public life, breaking the invisible barrier that heterosexuality imposes upon them. Constitution must recognise that the public assertion of identity founded in sexual orientation is crucial to the exercise of freedoms(para 60, page 337). It is imperative that the protection granted for consensual acts in private must also be available in situations where sexual minorities are vulnerable in public spaces on account of their sexuality and appearance.

“If one accepts the proposition that public places are heteronormative, and same-sex sexual acts partially closeted, relegating ‘homosexual‘ acts into the private sphere, would in effect reiterate the “ambient heterosexism of the public space.”  It must be acknowledged that members belonging to sexual minorities are often subjected to harassment in public spaces.The right to sexual privacy, founded on the right to autonomy of a free individual, must capture the right of persons of the community to navigate public places on their own terms, free from state interference” (para 62, page 339)

Celebration of sexual agency

The judgment is a “celebration of sexual agency” in the light of right to intimacy.  Right to intimacy, flowing from the right to privacy and individual autonomy, has not been so beautifully commented upon in any other judgment. The discussion on this, from Paragraph 67, page 344 onwards, is captivating and transcendental. Certain profound observations on the human longing for fulfilment of desire and companionship are extracted below :

“Consensual sexual relationships between adults, based on the human propensity to experience desire must be treated with respect. In addition to respect for relationships based on consent, it is important to foster a society where individuals find the ability for unhindered expression of the love that they experience towards their partner”.

“An individual’s sexuality cannot be put into boxes or compartmentalized; it should rather be viewed as fluid, granting the individual the freedom to ascertain her own desires and proclivities”.

“Accepting the role of human sexuality as an independent force in the development of personhood is an acknowledgement of the crucial role of sexual autonomy in the idea of a free individual. Such an interpretation of autonomy has implications for the widening application of human rights to sexuality”.

“Sexuality cannot be construed as something that the State has the prerogative to legitimize only in the form of rigid, marital procreational sex. Sexuality must be construed as a fundamental experience through which individuals define the meaning of their lives”.

“Human sexuality cannot be reduced to a binary formulation. Nor can it be defined narrowly in terms of its function as a means to procreation. To confine it to closed categories would result in denuding human liberty of its full content as a constitutional right”

“The Constitution protects the fluidities of sexual experience. It leaves it to consenting adults to find fulfilment in their relationships, in a diversity of cultures, among plural ways of life and in infinite shades of love and longing”.

The conclusions of the judgment can be summated as :

• Section 377 of the Penal Code, in so far as it criminalises consensual sexual conduct between adults of the same sex, is unconstitutional;
• Members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution;
• The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation;
• Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law; and
• The decision in Koushal stands overruled.

The judgment soulfully addresses certain existential puzzles of human condition – identity, autonomy, relationship with the collective, dynamics of desire etc. - through the constitutional framework. As much as with constitutional erudition, the judgment has been penned with a romantic and humane touch.

Published in Live Law on September 6