How does the UPA Government view decriminalisation of homosexual relations between consenting adults? Karan Thapar discussed this with Law Minister M Veerappa Moily.
Karan Thapar: Mr Moily, let's start with the Delhi High Court judgement: decriminalising homosexual relations between consenting adults. Why is your Government finding it so difficult to decided whether you accept the ruling or whether you want to appeal against it?
M Veerappa Moily: We are not uncomfortable with any ruling of any judgement, whether negative or positive. We take any ruling in a right perspective.
We need to examine it. Now the matter is pending before the Supreme Court, we are here to assist the court to arrive at a right decision. That is the role the Government will play.
Karan Thapar: Let me try and understand your thinking. The Delhi High Court, in its judgement says, Section 377 of the Indian Penal Code in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 14, 15 and 21 of the Constitution.
Do you agree with that interpretation of the Constitution?
M Veerappa Moily: I can't give a valid judgement on that judgement. It is a pre-1950 law. There are many, many laws enacted earlier to the Constitution coming into existence.
I am not referring to Section 377 alone, so many a time, the letter and the spirit of the Constitution may not be in consonance with many of the acts.
Karan Thapar: That is precisely what the Delhi High Court says. I am not asking you to give me a value judgement. I am simply asking you, if as Law Minister, you agree with the Delhi High Court's interpretation of the Constitution. Yes or no?
M Veerappa Moily: You can't get a cut and dry reply on a matter like this. It has to be decided by the Supreme Court. If I say yes or no, I may well be prejudging the issue which is before the Supreme Court.
Karan Thapar: In other words, until the Supreme Court decides, you won't decide whether you agree? You are saying, your views are dependent on the Supreme Court.
M Veerappa Moily: Not exactly. We may have a view but at the same time we have to submit that view to the Supreme Court as an assistance to arrive at a decision.
Karan Thapar: But you are also a minister. The people of India have the right to know the view of their own Government. That is why they have elected you. If you have a view and you say you have a view, what is your view? Is the Delhi High Court's interpretation of the Constitution correct?
M Veerappa Moily: During the pendency of a case, we don't give a personal view because after all this is ultimately the Government's view. Mr Chidambaram, Ghulam Nabi Azad, myself and some others met twice and ultimately we decided that we need present the facts to the Cabinet.
Karan Thapar: Let me put it like this. On July 21, the Attorney-General of India said to the Supreme Court that the Government of India did not want a stay of the Delhi High Court judgement. How should we the people of India interpret that?
M Veerappa Moily: It's an important question of law--relating to the Constitutional provision of liberty, privacy, they have given a judgement. As against that, obtaining a stay may be sometimes preposterous unless we have a final verdict from Supreme Court.
Karan Thapar: So in other words, to have sought a stay before a final verdict from the Supreme Court would have been preposterous?
M Veerappa Moily: Yes.
Karan Thapar: In other words, you are also saying that if the Supreme Court decides that the Delhi High Court judgement is correct, you will not take any steps to change the law and reverse the judgement?
M Veerappa Moily: There are occasions when the Government will not seek to reverse a judgement. Even the Supreme Court or the judiciary will have a right to lay down the law under Article 141 of the Constitution of India.
Karan Thapar: Is this such an occasion that the Supreme Court has a right to lay down the law?
M Veerappa Moily: Even if you don't take a proactive role or a negative role in a matter like this, sometimes the court can lay down the law. But one thing is very certain that the Delhi High Court has not abrogated or repealed Section 377 of IPC.
It is only to a limited extent. We have seen all through, right from 1860, I think a matter like this not even a single conviction has taken place in the country.
Karan Thapar: Those are the two points that I concede. Let's therefore, set them aside. Let's come back to the first issue that you were talking about.
You are saying to me that has Law Minister and as a member of the Government, you concede to the rights to the courts to lay down the law in certain areas?
M Veerappa Moily: Yes, very much. How can we deny it.
Karan Thapar: Is the decriminalisation of homosexual relations between consenting adults one such area?
M Veerappa Moily: It's too early to pre-judge the issue because the matter is already sub judice and it is before the Supreme Court.
Karan Thapar: I am not asking you to comment on the judgement. I am simply saying is this one area where you concede that the courts have a right to lay down the law?
M Veerappa Moily: I can't say that.
Karan Thapar: Why can't you say that?
M Veerappa Moily: Because individual opinion will not count. When there is a Cabinet, when there is a Government, individual opinion does not count.
Karan Thapar: So you are also saying to me that on several important issues the Government hasn't made up its mind on?
M Veerappa Moily: We make a domestic exercise on that. We discuss it in the Cabinet, but that discussion is not complete in the Cabinet.
Karan Thapar: Absolutely, which is why I am underlining it is that on two critical areas the Government hasn't made up its mind.
You haven't made up your mind whether the Delhi High Court's interpretation of the Constitution is one that you agree with. You are waiting for the Supreme Court to determine the matter and also the Cabinet, so both the Supreme Court and the Cabinet will decide the Government's opinion and therefore, on this issue, the Government hasn't made up its mind.
And the second area where you haven't made up your mind is whether decriminalisation of homosexual relations with consenting adults is an area where the courts can lay down the law. Again the Cabinet has to take a decision.
M Veerappa Moily: I have told you the general approach to the question. There are instances and instances when the Government will not make a law, will not provide a law. That is what is happening.
I know that it can be governed, but already Section 377 is an all embracing, all comprehensive instrument by which many of these offences can be punished. What is not punishable is private according to the judgement. What is punishable is if they indulge into it in public.
Karan Thapar: You have given me a very important hint. You have said that there are areas where the Government does not feel the need to lay down the law, there are areas where, in fact, the courts can take over and lay down the law.
You are hinting here that you may be happy to live with the reading down of Section 377?
M Veerappa Moily: As a Law Minister, I am very precise, very clear and I don't want to be vague on this matter. When I speak, I speak as a Law Minister of the country. That is the fact of the matter. That is the law of the land.
Karan Thapar: It is a matter of fact--it is the law of the land, that will be interpreted as confirmation of the hint?
M Veerappa Moily: Normally, we don't give room for inference or presumptions for our statements. We are very clear.
Karan Thapar: Let me put it like this. Do you believe that the activities that adults get up, consenting adults, in the privacy of their home should be criminal or not?
M Veerappa Moily: That is what the Delhi High Court said that it's not criminal.
Karan Thapar: What do you believe?
M Veerappa Moily:I can't give you the answer as 'Mr Moily' because I represent the Government. I am the Law Minister of the country. I don't want to prejudge the issue when the matter is before the Supreme Court and the matter is before the Cabinet.
Karan Thapar: This is an issue that goes beyond just prejudging. It touches on the nature of what sort of democracy India is. India is proud to be a liberal democracy.
Is it acceptable that we are also perhaps the only major liberal democracy in the world where what consenting adults do in private in their bedroom is considered possibly criminal. Are you happy with that?
M Veerappa Moily: That is why not even one case resulted in conviction.
Karan Thapar: But the law is still there.
M Veerappa Moily: Because after all, you know that sometimes law cannot reach out beyond a distance. This may be one of the cases when law cannot reach out its hand, beyond a distance but still that clause is in the statute, may be ineffective, may be frustrated, that is a different matter.
Karan Thapar: You said a very important thing. The law has not been used but bad laws are capable of misuse which is why they shouldn't exist. Secondly, bad laws brand and victimise people and that's is not right in a democracy.
M Veerappa Moily: Correct. Any law should not be used as an instrument of exploitation, harrasment or allow the authority to misuse it. This is one such provision which has a tendency of misuse and exploitation. I do agree on that ground.
Karan Thapar: So on that ground, should it be removed or amended?
M Veerappa Moily: You are asking me to give a judgement on morality and immorality of the things. As far as the law is concerned, it doesn't discuss or deliberate on the morality or immorality. This is one such area where I don't want to give a speech on morality.
Karan Thapar: I want to reiterate one thing that you said: That this is one law that is capable of being misused.
M Veerappa Moily: I agree with you. It has been misused.
Karan Thapar: It has been misused and has long as it exists, it is capable of being misused in the future as well?
M Veerappa Moily: Possible. If it has been misused earlier, it is capable of being misused now.
Karan Thapar: No good and sensible Government can allow it to exist which is capable of misuse. At least, that's a good reason for thinking very hard about it.
M Veerappa Moily: That is why the judgement was given.
Karan Thapar: Let's not talk about the Constitution specifically, although clearly this is a matter of Constitutional law.
Let's approach this matter of the decriminalisation of homosexual relations between consenting adults in a slightly different way. On the one hand, you have an issue that concerns the rights and liberties of a section of the population.
On the other hand, there are people who say that this infringes on public morality, it infringes on Indian culture and tradition. Which do you think should be more important, the Constitution and the rights and liberties of people or public morality and tradition and culture?
M Veerappa Moily: You have to make a distinction between public morality and also the morality of a person. When it comes to the public morality, yes, laws do subscribe to this. When it comes to personal morality, laws may not subscribe to it.
Karan Thapar: Are you therefore saying that laws that affect the rights of individuals, particularly when those individuals are not doing any harm to anyone else then the personal morality must subscribe to the Constitution?
M Veerappa Moily: I must tell many a time, the Constitution runs parallel to the provisions of many laws which were enacted earlier to the Constitution came into force.
Karan Thapar: Laws that pre-date Independence?
M Veerappa Moily: Yes, very much. You put many provisions of those laws under the IPC or the Evidence Act and many of these provisions will not stand up to the acid test of the Constitution. This is the apprehension.
There should have been a proper review of all the laws by the Constitutional makers so that either the laws were changed or the Constitution would have been changed so that there would have been a proper syncronisation of the laws of the land and also the Constitution.
Karan Thapar: You said two very important things. I am going to repeat them and I want you to confirm them. First you are saying that there are many laws that exist today which are part of the Penal Code which pre-date Independence and may conflict with the principles and rights given to Indian citizens by the Constitution.
And there is therefore a need to amend those laws in the light of the Constitution.
M Veerappa Moily: I am telling you putting both things together. If you want those laws which may be struck down or put to the test, you either amend those laws or repeal them, or if you are very particular that those laws must find the strength of the Constitution of India then may be we may have to amend the Constitution as well.
Karan Thapar: Either amend the laws or repeal the laws or amend and change the Constitution?
M Veerappa Moily: Correct.
Karan Thapar: But you can't allow the dichotomy, this contradiction to continue?
M Veerappa Moily: The environment of dichotomy between the laws and the Constitution is very much manifested. That is how the Constitution of India which is supposed to be the conflict resolution document is being transformed into the conflict-generating document because of the conflict of opinion or conflict of provisions in the laws.
Karan Thapar: You also said a second important thing: You wished that this syncronisation--as you called it-- had been done by the Constitution makers themselves. It shouldn't have been left to later generations.
M Veerappa Moily: Yes, very much.
Karan Thapar: The Delhi High Court in its judgement extensively quoted from Jawaharlal Nehru's speech to the Constituent Assembly in 1946 when he said that people who are considered different or deviant must not be ostracised or excluded on those grounds. Does your government agree with Jawaharlal Nehru's views?
M Veerappa Moily: Absolutely. He is the real founder of the Constitution of India. He is the real founder of the ethos of liberalism in the country. And I must tell you that the Constitutional makers should have seen to that. But many a times, some of the wishes of the Constitutional founders have not been transformed into the laws of the country.
Karan Thapar: You have said a very important thing. You completely and totally agree as a Government with Jawaharlal Nehru's views that people who are different and considered deviant must not be excluded or ostracised on those grounds.
Does your Government agree with Jawaharlal Nehru's views?
M Veerappa Moily: Absolutely. He is the real founder of the Constitution of India and the real founder of the ethos of liberalism in India. But many a times some of the visions of the Constitution-makers have not be transferred into the laws of this country.
Karan Thapar: That I understand, but you said a very important thing. You completely and totally as a Government agree with Jawaharlal Nehru's views.
M Veerappa Moily: Very much so.
Karan Thapar: That people who are who are different and considered deviant must not be excluded or ostracised on this count.
M Veerappa Moily: The laws should be gender neutral. This is the principle of law. There cannot be discrimination. I am not giving a judgement by saying this. One thing must go to the credit of the Delhi High Court judgement, it is well-documented, well-researched.
I must tell the judges, the subject may be different but at the same time this is one judgement which has really stood out in the judicial annals of this country.
Karan Thapar: Well-researched. Would you also say well-argued?
M Veerappa Moily: Yes.
Karan Thapar: If it is well-argued, then you agree with the argument?
M Veerappa Moily: You present an argument before the court, even if you well-argue, you may lose the case.
Karan Thapar: I won't trap you. But I think there is a clear hint there. I can't trap you, you are the minister, you have to abide by the collective decision of the Government, but you have just given a hint. If it is well-argued, you must agree with the argument.
My last question to you. Are there any differences in the Government over this issue of decriminalising homosexual relations between consenting adults?
M Veerappa Moily: The Prime Minister, Dr Manmohan Singh, asked the Home Minister Mr Chidambaram the Law Minister - that is me - and also the Health Minister Mr Azad to discuss and deliberate on this matter even before the judgement because the previous health ministry had taken a different decision on that.
Karan Thapar: So today's Health Ministry has taken a different view compared to the Health Ministry under Mr Ramadoss?
M Veerappa Moily: I cannot share that with you.
Karan Thapar: But you hinted that just now.
M Veerappa Moily: No I can't.
Karan Thapar: Are the three of you on one mind?
M Veerappa Moily: One mind in formulating the presentation and giving it to the Cabinet.
Karan Thapar: What about the one mind over the issue of decriminalisation?
M Veerappa Moily: No, no, on analysing the judgement.
Karan Thapar: You are hinting once again at differences, but I won't embarrass you anymore by pushing it further. You can't reveal more. A pleasure talking to you.