LAWYER: Your lordships, I stand before you today in the matter of Suresh Kumar Koushal v Naz Foundation. This is a matter that affects the lives of millions of citizens in our country. We argue that Section 377 of the Indian Penal Code is unconstitutional, that it criminalises the intimate lives of lesbian, gay, bisexual, transgender individuals in the country, that it exposes them to harassment, blackmail, persecution, prosecution. In 2009 the Delhi High Court held that it does violate the Constitution, that as far as two adults who have consensual sexual intercourse in private are concerned, they should not, they cannot be criminalised under the law –
JUDGE 1: So the question before us is whether the Delhi High Court judgement is correct or not.
LAWYER: I respectfully submit your lordships that the question is broader, and it is one that is stated in the petition.
JUDGE 2: And can you formulate that for us, counsel?
LAWYER” Your lordships, the question is whether Section 377 of the Indian Penal Code, as it is interpreted today, is violative of Articles 14, 15 and 21 of the Constitution. We thus do not ask you to merely consider whether the Delhi High Court was wrong or right though we do stand by their judgement. What we are submitting before you is to consider this matter afresh, and in so doing to find that Section 377 does in fact violate the constitutional rights to equality, non-discrimination, health, privacy and personal liberty. We place before you a number of documents and affidavits to show that there is widespread abuse of the section, which leads to harassment faced by LGBT individuals –
JUDGE 1: We want to clarify, counsel, whether this is a finding of the High Court or the perception of individuals?
LAWYER: Lordship, I’m not sure I understand.
JUDGE 1: When 377 is abused – is that a general issue that happens with the law, is there a specific finding of abuse with respect to LGBT – is there clear documentation of their being targeted – or is it misused in the way that other provisions of the law are misused. Can we just give a general declaration about the law?
LAWYER: A general declaration – yes, your lordship. You would not say that it is reasonable for Section 377 to be applied to a husband and wife. You would draw the line there. We are asking for the line to be drawn at consensual sex between any adults in private, which would then stop the law from being misused against LGBT persons.
JUDGE 1: Please read Section 377 for us.
LAWYER: “Whoever has carnal intercourse against the order of nature, with man, woman or animal shall be punished with imprisonment for a term...”
JUDGE 1: Whoever!
JUDGE 2: Whoever. Who-so-ever.
JUDGE 1: Counsel, tell us where is the mention of lesbians, gays, etc here?
LAWYER: They aren’t explicitly mentioned, your lordship, but we have overwhelming evidence to show over the past 150 years that it is LGBT persons who have been targeted under this law.
JUDGE 1: Overwhelming!
JUDGE: Counsel. If the law is silent on this LGBT question, then how is it that you are making this argument, how is it that only LGBT are being chased under the law?
LAWYER: Your lordships, I am telling you that this was the intent of the law, and that these are the people who the law was originally created to persecute.
JUDGE 2: But how do we know this?
LAWYER: By looking at the origin of the law. By looking at how it has made its way into the Indian Penal Code. Your lordships, if we go back in time, the first recorded mention of sodomy in English law was in two medieval texts that prescribed that sodomites should be burnt alive. Then, when secular laws began to come into place in England, you had the Buggery Act in the sixteenth century –
JUDGE 2: Counsel, where are we?
LAWYER: In the Supreme Court, your lordships.
JUDGE 2: Yes, and where is the Supreme Court?
LAWYER: We are on Tilak Marg...
JUDGE 2: No I mean what country is the court in?
LAWYER: India, your lordships.
JUDGE 1: Exactly. India. Why are we concerned with what happened in England in the sixteenth century?
JUDGE 2: Are we in England?
LAWYER: No lordships, there is little doubt that we’re in India. I’m only trying to tell you where this law comes from and explain to you that the historical context will help us understand why it is that specific terms like gay or lesbian are not used in the law –
JUDGE 1: We don’t need a history class, counsel. This is a court of law. You just tell us what this law means.
LAWYER: Absolutely, your lordships, and the best way to understand what this means and who this covers is to place it in its context, and see that it was intended to cover the act of homosexual sodomy. Except that the British were so concerned about not naming the identity, about not drawing people’s attention to this particular social group that they said, and I quote: “We are unwilling to insert in the text anything which could give rise to public discussion on this revolting subject – ”
JUDGE 2: Speaking of inserting, counsel, please go back to this carnal intercourse question.
LAWYER: Yes, your lordships, the point is that this term has been used in reference to LGBT individuals –
JUDGE 1: Counsel, counsel, where are you getting this from!?
LAWYER: As I mentioned, the British referenced a revolting subject –
JUDGE 1: But there are so many revolting subjects!
JUDGE 2: How do we know exactly what the revolting subject was?
JUDGE 1: Yes, how do we know exactly what this carnal intercourse against the order of nature is? What acts are being targeted?
LAWYER: But your, lordships, that’s why the context is important, that’s why history is important – we need to see that this was never about specific acts, it’s about the groups that they refer to –
JUDGE 2: That is not what the section says.
JUDGE 1: The section is clear. It says: Carnal. Intercourse. Against. The. Order. Of. Nature.
Witness 2 enters and takes a seat on stage. Lawyer exits.
Excerpted with permission from Love and Reparation: A Theatrical Response to the Section 377 Litigation in India, Danish Sheikh, Seagull Books.