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Interview with Advocate Nipun Saxena- Part I

Voices Under 35

As a magazine that brings forth the opinions of the youth, Polemics & Pedantics presents- “Voices Under 35”- an interview series dedicated to interacting with young Indians who have made a mark for themselves in their respective fields. In a country with approximately 800 million people below the age of 35, potential is limitless but so is competition, and anyone with the ability to stand out has tapped into something incredible. We sit down with one such individual- Advocate Nipun Saxena- to discuss the state of India’s legal system, its sensitivities to women, and a lot else in this two part interview series.

Mr. Nipun Saxena is a practicing advocate in the Supreme Court of India. He has appeared in various cases with substantial ramifications for our society. In 2012, following the horrific Delhi Gang Rape incident, Mr. Saxena, while still a law student, filed a Public Interest Litigation in the Supreme Court.

Today, Nipun Saxena v. Union of India has become a landmark case involving debates on issues ranging from one stop crisis centers, to witness protection programs and regulation of taxi services such as Uber and Ola from the perspective of women's safety. It also led to the imposition of a fine on the Union Government. In addition, Mr. Saxena is also involved in a petition relating to privacy concerns in the Aadhar project of the Government of India. He is also a visiting faculty at his alma mater- The National Law University, Delhi- and has several international publications to his name.

In part I of this two part interview, Mr. Saxena talks to us about women’s rights, societal paternalism and homosexuality.

In 2012, you filed the PIL that is now being heard in the Hon’ble Supreme Court as Nipun Saxena v. Union of India. What are the issues raised in that petition?

This Public Interest Petition was filed on 20.12.2012, merely three days after the gruesome incident that had shaken the conscience of the society. The initial issues raised before the Supreme Court were women’s safety, access to public spaces and issues pertaining to making urban transportation and safety infrastructure more robust.

There were a host of other issues that the PIL raised, such as development of a uniform victim compensation scheme for victims of rape, sexual assault or acid attacks and associated medical treatments. It also sought to devise a uniform medical protocol to be followed by all hospitals (public or private) so as to ensure that a rape survivor is treated with dignity in navigating the trial process from the moment she steps into a police station.

The intent was to make the system more inclusive so that justice is literally delivered at the footsteps of the survivor. During the proceedings, new issues such as development of One Stop Crisis Centres, Witness Protection Programmes, Regulation of taxi-hailing apps (Ola, Uber), Uniform Sentencing, Mandatory Reporting, etc. came to be included in the Petition.

A variety of orders have been issued in the case. These include a Transport Department crackdown on unlicensed commercial vehicles, enforcement of restrictions on tinted glasses in cabs and buses, GPS enabled public service vehicles, and grant of interim compensation in the Chandigarh Minor Rape Case. Further, the notoriously demeaning ‘Two Finger Test’ used by the hospitals has been banned, and the Supreme Court is taking several other steps to ensure that women’s Right of Access to Public Spaces, the Right to Dignity is secured throughout India.

At 18yrs, do you think the increase in the age of consent in India is a conservative response of an orthodox paternalistic society that has institutionalized judgemental attitudes towards adolescent relationships?

Before adverting to this question, it is important to look at the historical context in which the law came to be enacted. In 2012, barely months before the infamous Delhi Gang Rape case on the fateful night of 16th December, a new legislation called the Prevention of Children from Sexual Offences Act, 2012 (POCSO Act) was enacted on 19th June 2012. Until that time, the definition of Rape under Section 375 of the Indian Penal Code only made a non-consensual sexual act resulting in penile-vaginal intercourse punishable. The POCSO Act, however, made every other non-consensual sexual act (anal sex, oral sex, as well as fisting or fingering, or insertion through any other object) punishable and classified them as an offense.

After the Delhi Gang Rape Case, the Justice Verma Committee was constituted to suggest methods to make the system more robust. The Committee suggested that the definition contained in the POCSO Act, 2012 must be implanted into the new definition of Rape. The Parliament, selectively implemented the recommendations of the Justice Verma Committee and engrafted the definition contained in the POCSO Act by way of the Criminal Law Amendment Act, 2013. However, one of the biggest lacuna of the new provision was that the Age of Consent was enhanced from 16, to 18 years.

This means that a girl under 18 but above 16 years of age is statutorily incapable of giving her consent for participating in any sexual act, or for establishing sexual relations. This means that “sexual interaction” as is understood in the conventional sense of the term will now also include oral sex, anal sex, or fingering. These will now qualify as “Rape” even though the consent for the same had been taken, if the girl is under 18 years of age.

You mention that the girl is incapable of giving consent, aren’t gender biased rape laws also an example of paternalism?

This is another critical issue. The definition of ‘Rape’ categorically stipulates that only “a man is said to have committed rape on the woman”. Therefore, an aggressor can only be a man, whereas the victim can only be a woman. Conversely, a woman cannot be the aggressor, nor can a man ever be a victim. Therefore cases where a woman forcibly causes penetration, though rare, afford no opportunity to a man to avail a remedy under this provision. A pertinent case in point is a fairly recent case of an auto-rickshaw driver being allegedly sexually assaulted by a foreign woman, while her friend recorded the entire incident on her phone.

Another case that made its way to the Supreme Court was Priya Patel v. State of M.P., where a lady was accused of having assisted a man in penetrating the victim. However, the Supreme Court expressed its helplessness in the matter and refused to interfere with the order of acquittal. These cases have sufficiently illustrated the need for gender neutral rape laws.

However, those supporting the stance that a woman cannot be made an aggressor in a rape case state that this provision, just like those of dowry and domestic violence could be misused and aggravate instances of false complaints. It is also said that while dowry related offences or domestic violence are both non-cognizable (which is to say that the Police Officer needs an arrest warrant), rape is cognizable and a very serious offense.

This logic suffers from a serious flaw. The remedy for any instance of false reporting is provided under the IPC (section 211 and/or section 500) and anyone who feels that a false case has been lodged can avail of the same.

As a lawyer, have you ever dealt with cases on the above matters, the statutory prescriptions seem to place an unfair punishment, or are non-existent for victims?

I had to deal with one incident where a fairly young couple engaged in an act of consensual sexual intercourse found themselves on the wrong side of the law, because at the time of giving consent, the girl was a minor.

I was called upon to defend a boy who was above 18 years of age. It so happened that the girl was turning 17 the same day when the law raising the age of consent to 18 years was to be enforced.

After a strenuous round of cross examination and lengthy arguments stretching out to the time of arrest- when FIR was lodged- we were able to persuade the Court to take the view that the act of consensual sexual participation took place before midnight, and therefore at the time when the girl participated in the aforementioned sexual activity, she was perfectly capable of giving her consent.

However, to answer your question, I believe our task as lawyers is not to judge our clients, because the burden of establishing guilt is on the prosecution, and to pronounce upon guilt or innocence is the task of the Judge. Our task is to simply ensure that whatever guarantee or benefits are available to an accused under the applicable law, must be afforded to him/her.

Staying with paternalism, do you think instances of moral policing like the ‘anti-romeo squad’ in UP or the common sight of RWAs preventing female tenants from having male guests, are a result of our society’s inability to conceptualize women’s rights as human rights?

When Sir William Bentick enacted a law that elevated the status of women, viz the Bengal Sati Regulation in 1829, the move was met with stiff resistance from the socio-political sector. This was because the law sought to efface a deep-rooted mentality, which though not traditionally a part of the Hindu culture, had somehow percolated into the system at a later stage. It worked to lower women in the social hierarchy. However, with the spread of education, people accepted that the practice was depriving women of their basic rights.

Centuries later, this question still surfaces. An unmarried couple wishes to hide their identity before residing in a residential locality, despite the Supreme Court having accepted and endorsed live – in relationships and rights emanating therefrom, as far back as in the year 2006. The society is yet to come to terms with such an interpretation of law.

When a girl or a boy attains the age of maturity, they are no longer within the actual or constructive custody of their parents and are free to make their own choices. These societal rules,

whether it be in the form of RWA’s making bye-laws that take away liberty, or the setting up of Kangaroo Courts or Khap Panchayats, are all aberrations to the principles of law and unconstitutional.

Let’s turn now to homosexuality, what is your opinion on s.377 of IPC?

​Section 377 of the IPC is already a dead body, in view of the decision rendered by a 9 Judge Bench of the Supreme Court of India in Justice K.S. Puttaswamy Case (The Privacy Judgment) in

2017. What is now required is the performance of funeral rites to formally strike it down as being violative of Fundamental Rights. The Nine Judge Bench has already declared that the Right to Privacy includes the Right to make a choice, where that choice includes the right to choose a sexual partner, the food we eat, the clothes we wear, and a host of other choices. In this context, the question whether a provision like section 377 could stand is only academic. In my view, what the Naz Foundation could not have done in a span of a decade old litigation, the Supreme Court has, in another case, accomplished by the stroke of a pen.

Academically speaking, the expression, “against the course of nature” is troubling, as it seeks to criminalize any sexual activity which is against the course of nature. The necessary assumption here is that the only ‘course of nature’ is a penile-vaginal sexual interaction between a male and a female.

The Delhi High Court could have stuck it down in 2009, if it found that the provision offends Fundamental Right. What the High Court instead chose to do was to read new words into the provision. It held that the provision shall not apply to “consensual acts by majors”. Section 377 unlike Section 375 (rape) does not even touch upon consent. To read consent into the words of the statute would have amounted to legislation. This is not within the domain of judiciary, and the question when thereafter referred to the Supreme Court, led to the observation that the High Court had exceeded its jurisdiction by modifying the statute.

However, that Division Bench of the Supreme Court did not enter into the query of whether the provision itself violates Fundamental Right or not. Now that the matter has been referred to a Constitution Bench, this matter will be re-agitated. But, as explained earlier, these debates are merely academic in view of the Privacy Judgement

Could you explain in a little more detail how the Privacy Judgement is related to homosexuality?

The Right to Privacy is an integral facet of an individual’s liberty. This Liberty has been safeguarded by the Constitution itself. The State has a positive duty to protect the liberty of an individual. This liberty can be manifested in the form of an individual’s right to make decisions and their own choices. This is called ‘Decisional Autonomy’.

It is this liberty that makes the life of an individual meaningful, and the protection afforded by the Constitution ensures that the life of an individual is not reduced to mere animalistic existence.

It is in this context that homosexuality comes in the picture. The choice of a sexual partner between two consenting adults is yet another facet of liberty.

Merely because the people who wish to express their affection towards same sex are, demographically speaking, a numerical minority- or a sexual minority- does not mean that such laws can be allowed to operate which discriminate against them on the basis of their sexual preferences. A community, howsoever miniscule numerically, enjoys the same freedoms and guarantees under our Constitution as the rest of the population. The State cannot make laws which take away these cherished guarantees. The Supreme Court speaking through Justice Chandrachud has gone to considerable lengths to highlight various aspects of the Right to Privacy. However, the court fell short of overruling the earlier decision rendered by two judges, possibly owing to due deference to another Bench where the matter is currently pending. However, as I have already pointed out earlier, the fate of Section 377 has already been sealed. It is only a matter of time before the Naz Foundation Verdict is revisited and Section 377 declared unconstitutional.

About the Interviewer

Prashant Khurana is the Founding Editor of Polemics & Pedantics. He is a student of Law at the Faculty of Law, Delhi University. He holds a Bachelor’s degree in History from Hansraj College, Delhi University. Prashant is an accomplished debater, and an active participant and organiser of Model United Nations Conferences and was recently invited as a Chairperson at the University of Kent, United Kingdom for their MUN conference. He has appeared as a guest panellist on Headlines Today (presently, India Today) News Channel and has also interviewed personalities such as Mr. Mani Shankar Aiyar, Dr. Sambit Patra, the Ambassador of Canada to India, among others.

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