Section 377 of the Indian Penal Code (IPC) penalizes “voluntary carnal intercourse against the order of nature with any man, woman or animal.” Punishment includes 10 years to life in prison and/or a fine. Part of British colonial law enacted in the 1860s, Section 377 was intended to criminalize “all unnatural acts ranging from consensual same-sex sexual activity between adults, or even oral sex between a married heterosexual couple, are offenses, though the pervasive homophobia in our [Indian] society ensures that only the first is ever prosecuted.”1
Documented reports and anecdotal evidence suggest that the impact of Section 377 on lesbian, gay, bisexual, hijra, and transgender communities in India include: police violence including sexual assault, custodial abuse and extortion; forced electroshock and drug-based reparative therapies in mental health institutions; the use of police by parents and older siblings to detain and intimidate family members in gay and lesbian relationships; the arrest of NGO workers doing HIV/AIDS prevention with men who have sex with men (MSM); and daily stigma and discrimination against LGBT people contributing to significant suffering and suicides. As noted by one Indian activist, “violence, intimidation and fear in the lives of queer people are legitimized in the name of the law.” 2
In 1994, AIDS activists filed a petition against 377, asking the Supreme Court to consider the right to privacy. The petition was later withdrawn. In 2003, the Naz Foundation, a New Delhi-based NGO working on HIV/AIDS and sexual health filed a petition in the Delhi High Court. The petition was rejected on a technicality by the High Court whose decision was subsequently appealed in the Supreme Court. In 2004, a Delhi-based coalition of groups working on women’s rights, children’s rights, human rights, sexual rights, the right to heath, and LGBT issues came together with Amnesty International India and called for public action to “end discrimination of all kinds under Section 377.”
In 2006, the Indian Supreme Court sent the Naz petition back to the Delhi High Court. On May 19, 2008, the Delhi High Court finally began hearing the petition. The judges on the case are Justice Sikri and Justice Mirdha. Anand Grover of the Lawyers Collective is representing the petitioners. Their first effort is to declare Section 377 unconstitutional for adults having consensual sex on the basis of the Indian Constitution’s Article 14 which talks of equality, Article 15 which talks of equality on the basis of sex, Article 19 which talks of the freedom of speech and expression, and Article 21 which talks of the right to privacy and health.
IGLHRC is receiving regular updates (first update attached) on the court’s proceedings from the Lawyers Collective and will post them on the IGLHRC website. We will keep you informed about major developments about the case.
To read more about the legacy of British colonial laws that criminalize homosexuality, please see Douglas Sanders’s article “377 -- and the unnatural afterlife of British colonialism”
Naz Foundation (India) Trust v. Union of India came up for hearing before a division bench of Justice Sikri and Justice Mirdha of the Delhi High Court at 2.30 pm on May 19, 2008.
Day 1 proceedings:
Counsel for the petitioners – Anand Grover, introduced the case which challenges the constitutional validity of Section 377, Indian Penal Code (“IPC”), that criminalizes sodomy for violating Articles 14 (equality), 15 (non-discrimination), 19 (freedom of speech and expression) and 21 (life and liberty).
Anand proposed to present his arguments in the following sequence: tracing legislative history of anti-sodomy law(s) in England and pre colonial, colonial and post colonial India, examining the meaning and scope pf of Section 377 through textual reading and judicial interpretation by Courts, and arguing that the section lends itself to ‘vagueness’ and ‘uncertainty’ and is therefore open to an attack on constitutional grounds.
In the alternative, he proposed to argue that even if “unnatural offences” under Section 377 had acquired a meaning of proscribing non procreative, penetrative penile sex, it still fell foul on constitutional grounds.
Justices Sikri and Midha inquired if the counsel for the respondent – Union of India was present. Counsels for Respondents No. 6 (JACK), No. 7 (Mr.B.P Singhal) and No. 8 (Voices against 377) marked their presence.
Counsel for the Union of India submitted that her client had filed two affidavits, one by the National Aids Control Organization (NACO) under the Ministry of Health and the other by the Ministry of Home Affairs. She admitted that NACO’s reply is supportive of the Petitioner. To this, Justice Sikri remarked that if that is the Union’s position then why not doesn’t it amend the law itself?
The Counsel for the Union of India replied that the Ministry of Home Affairs has opposed the petition but that its counter was filed in 2003 prior to NACO’s reply (in 2006). She admitted that the client (i.e the Ministry of Home) had not given any new or additional instructions. It therefore appears that the Ministry of Home stands by its earlier stand of contesting the petition.
Amused by the fact that the Union was divided in its opinion, Justice Sikri remarked “It (homosexuality) is not a health hazard but is affecting the home”.
Counsel for B. P Singhal referred to a 1996 case involving ONGC where there was a difference of opinion between two government departments. Singh was of the opinion that the matter be decided by the Cabinet and suggested that the Cabinet Secretary be directed to appear in Court. The Judges dismissed Singh’s proposal.
Counsel for the Union then read out portions from NACO’s affidavit which admit that criminalization of homosexuality make it difficult to prevent HIV. She also drew attention to NACO’s submission that there are nearly 2.5 million men having sex with men (MSM) in India and that it is estimated that 8% of this population is infected with HIV as compared to less than 1% of the general population. Reading on, she highlighted NACO’s strategy for prevention of HIV which includes provision of information and education, communication for behaviour change and prevention tools, i.e condoms to high risk groups like MSM. At the same time, NACO strives to reinforce traditional Indian values and morals. The Counsel accepted that she was unable to reconcile contradictions in NACO’s affidavit as well as divergent stands bwtween NACO and the Ministry of Home.
Thinking aloud, Justice Sikri said that the Home Ministry maybe asked to review its own position in light of NACO’s affidavit.
At this stage, Anand drew the Court’s attention to another matter (re recruitment of HIV positive persons in the Police) pending before the Supreme Court where NACO and the Ministry of Home had taken different stands. Anand said that he was not minded to oppose the Court’s suggestion but would still press for the matter to be heard at the earliest. The Judges clarified that they were ready to hear the matter today itself and ultimately decided to proceed with the hearing with whatever was on record.
Singhal’s counsel interjected by saying that the crux of the matter was whether adult consensual unnatural sex should be decriminalized. In his submission, it cannot be, as by that logic, sati, paid organ transplant and drug purchasing should be let off the hook.
Anand then proceeded with his submissions:
History of law on Homosexuality
- England: Biblical writings incorporated in Law
Anand traced the treatment of sodomy as an “abhorrent” act or “unspeakable vice” in original biblical writings from the 13th century upto the enactment of the Buggery Act in 1533 in England. Sodomy was punishable with death up until 1835.
Anand pointed out that after 1850, there were two sets of crimes – (i) sodomy and (ii) indecent acts or assault. Justice Sikri sought a clarification on the definition of sodomy and noted that indecent assault implies lack of consent.
England reformed its law in 1967 decriminalizing same sex activity between adults.
- Pre colonial India
Anand presented relevant texts from Manusmitri. At this juncture, Counsel for B.P Singhal objected saying that the arguments should be confined to anglo-saxon jurisprudence and not venture into ‘sensitive’ areas of religion, anthropology etc.
Although the Justices were inclined to hear ancient scripts, Anand conceded and said that since the submission was part of the pleadings on record, it may be considered ‘read’.
- Colonial India: Introduction of the Penal Code
Anand then read out relevant sections from various drafts of the Penal Code submitted by Macaulay. He pointed out to the lack of discussion on the subject, which, in Macaulay’s own admission was so “abhorrent” that it cannot be subjected to public debate. Anand submitted that in the absence of legislative deliberations, the Court will not be able to use external aids to interpret the law.
- Independent India: Law Commission Reports
Anand drew the attention of the Court to two reports of the Law Commission (156th and 172nd) that discussed Section 377, of which the latter recommended its deletion in the year 2000.
Meaning and Scope of Section 377
Anand began with a textual reading of Section 377.
- Unnatural Offences,
- -Whoever voluntarily has carnal intercourse against the order of nature, with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
- - Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section
Anand submitted that though the law penalized specific acts, it been applied arbitrarily since its inception. In one this case, a eunuch was prosecuted under 377 on the basis of dress and demeanor and later medical examination. Though the High Court overturned the conviction, criminal proceedings were initiated even in the absence of a sexual act.
Anand said that the section penalizes “unnatural offences”, which are not defined. However, terms/ language of the section indicate what it intends to cover:
- “Voluntarily” – which, though synonymous does not signify consent as the latter requires two parties.
- “Whoever” - which could refer either to the person penetrating or the person being penetrated.
- “Carnal intercourse” – Anand contrasted the term with “sexual intercourse”, which is used in two other sections of the IPC dealing with sexual offences, i.e Section 375 and 376 dealing with rape and Section 497 which criminalizes adultery. Since both these provisions pertain to a heterosexual context, Grover inferred that “sexual intercourse” refers to penile-vaginal sex while “carnal intercourse” covers non-penile vaginal sex.
- “Penetration” - incorporated in the explanation to the section. In the biblical sense, the act of sexual intercourse is complete with erection, penetration and ejaculation. However, Section 377 merely requires penetration, with or without seminal discharge.
Anand stated that that through judicial interpretation, non-penile vaginal sex has acquired another color, that is, “non-procreative sex”. He added that over time, the word “perversity” also gained usage in interpreting 377.
Anand went on to argue that over a period of time, Courts have included many sexual acts within the meaning of “unnatural sex” under Section 377 such as coitus per anus (anal sex), coitus per os (oral sex), rubbing the penis b/w thighs. In addition to disparate acts, the Section covers actions between different parties – man and man, man and woman and man and animal.
Anand then pointed out that the section makes “consent” irrelevant. Sometimes however, Courts have held consent to be a factor mitigating the sentence. In one case involving oral sex between a husband and wife, consent was accepted as a defence, leading to acquittal.
Summarizing the vague and uncertain reading of the section, Anand said that being pre-constitutional; the section has not been subjected to strict scrutiny. He asserted that now the time has come to test it against Constitutional parameters of fundamental rights.
Decriminalisation in England – Wolfenden Report
Next, Anand introduced the report of the Wolfenden Committee, set up in 1957 to examine criminal laws on homosexuality and prostitution in England and Wales. The report’s recommendations were the basis for decriminalization of adult consensual homosexual acts in the U.K. Impressing the importance of the report, Anand said that its findings on the object, scope and limits of criminal law are enlightening to the merits of the petition, which sought the exclusion of adult, consensual sex in private from section 377. In conclusion, Anand emphasized that it was well accepted that acts done by consenting adults in private are not the province of criminal law and that morality cannot be the basis of subjecting individuals to penal hardship.
Anand asserted that when a country (England) without a constitutional legal system has revoked the law, India with a robust Constitutional scheme, must be open to scrutinizing the law against the rigours of the Constitution.
Drawing a parallel with prostitution, Anand pointed that prostitution is not an offence. The Immoral Traffic (Prevention) Act 1956merely proscribes attendant activities.
Justice Sikri commented that public opinion on this subject differs. To this Anand said that the issue is to decide what role criminal law should play?
Sexual act or sexual orientation
Anand went on to point out the difference between homosexuality and homosexual acts. He said that though the section does not criminalise sexual orientation or a homosexual identity, it is still offensive to the dignity of homosexuals. He referred to studies that show that health risks/burden of disease are higher among gay men.
Justices responded in the affirmative and said that NACO’s affidavit itself acknowledges this finding.
Anand drew attention to situational homosexual acts such as in military barracks, prisons or other exclusively male settings. He referred to an earlier petition filed by the AIDS Bhed Bhav Virodhi Andolan (ABVA) that challenged Section 377 on the ground that it prevented jail authorities from supplying condoms.
Justice Sikri inquired about the matter and its outcome. Anand replied that the case was dismissed in 2001 for non –prosecution.
The matter is adjourned to Wednesday, 21st May at 2pm.
Lawyers Collective HIV/AIDS Unit, India
Update: Section 377-Proceedings on May 22, 2008
The matter Naz Foundation (India) Trust v. Government of NCT, Delhi and Others, Writ Petition (Civil) No. 7455 of 2001 came up before Justice Sikri and Justice Midha at 3 pm on 22.5.08. The Bench did not sit on 21.5.08, when the matter was originally scheduled to be heard.
Anand Grover appeared for the petitioners while the respondents were represented by Monica Garg (Union of India), Ravi Shankar Kumar (JACK), Mr. H.P Sharma (Mr.B.P Singhal) and Vrinda Grover (Voices against 377).
Day 2 Proceedings
Law reform in England – Wolfenden Committee Report
Resuming the arguments, Anand Grover continued to read extracts from the Wolfenden Committee report. Iterating its importance, Anand Grover said that the report sets out a framework for discussion on public policy on consensual sodomy. More importantly, it addresses all the arguments against decriminalization of homosexuality including those that may become relevant considerations for this Court.
Anand Grover highlighted the report’s findings on the following questions vis-à-vis decriminalization of same sex activity:
- whether it will encourage homosexual conduct?
- whether it will have an negative influence on marriage and family?
- whether it will pave the way for pedophilic acts?
- whether it will hurt pubic sentiments/morality?
Anand Grover pointed out that on the first question, the report found no evidence that removal of legal sanctions will result in increased homosexual activity. In other words, the report found no association between law and the prevalence of homosexuality.
In considering whether legitimizing homosexual conduct would lead to break up of marriage and families, the report concluded that male homosexuality was as much a factor for break up of marriages as adultery, fornication and lesbianism. Therefore, the report found no justification for treating male homosexuality different from these causes. Anand Grover added that in the Indian context, criminality associated with same sex relations compels many gay men to marry. Besides an unhappy marriage, this may expose the spouse to the risk of HIV.
On the issue of pedophilia, the report categorised men engaging in same sex acts as - 1) those desiring adult male partners, and, 2) those seeking sexual contact with underage boys, that is, pedophiles. Anand Grover emphasized that the report supported the deletion of penalties against the first category but not men engaging in pedophilia. Pointing out to what may be a determining factor for this Court; Anand Grover stressed the report’s observation that the function of the law is to “protect the weak, the defenseless”. This would cover underage persons, unable to consent. In this context, Anand Grover reminded the Court that the petitioner is mindful that Section 377 is the only recourse for sexual abuse against boys, and is therefore merely seeking a reading down of the law.
In examining public acceptance of consensual sodomy, Anand Grover pointed out to the report’s conclusion that moral codes or attitudes cannot be the basis for penalizing individuals in a free society. Concurring with the report, Anand Grover argued that is not the role or function of criminal law to uphold or preserve private morality.
Thereafter, Anand Grover skimmed through legal concepts that the Wolfenden Committee was faced with:
- What is consent?
- Who is an adult?
- What is private?
Consent: Can be an eager response or a grudging submission. The report found no reason to differentiate in standards for consent for heterosexual and homosexual sexual activity.
Adult: Criteria tends to be arbitrary. Still, the report suggested 21 yrs, which the Legislature in England agreed to. Anand Grover pointed out that the same was later lowered to 16 yrs, in accordance with decisions of the European Court.
Private: Need not be strictly spatial. Anand Grover explained that through a park is a public place, at night and in the dark, it may be seen to create a zone of privacy.
At this stage, Justice Sikri inquired about reservation(s), that he observed in sections of the report. Anand Grover admitted that there was dissent, and that those portions will also be placed before the Court.
Legal status of homosexuality – Trends
Next, Anand Grover presented a list of countries that have decriminalized homosexual conduct. Updating the Court, he said that Nepal and Fiji have been added to the list through pronouncements of Court(s). Anand Grover mentioned a recent decision of the Supreme Court of Nepal directing the Government to repeal discriminatory provisions against sexuality minorities. In Fiji too, legal proscriptions against same sex acts between adults were declared void or unconstitutional by the High Court.
Drawing the Court’s attention to Asian countries, Anand Grover mentioned China , Thailand, Cambodia, Indonesia and Iraq among others. He went on to say that some countries have also enacted law(s) to prohibit discrimination based on sexual orientation.
Recommendations of the Law Commission of India
Anand Grover then apprised the Court of recommendations of the Law Commission vis-a-vis Section 377. He presented extracts from the 172nd repot that suggested a repeal of Section 377 in the context of reforms of rape law(s).
At this stage, Mr. H.P Sharma pressed concerns over child sexual abuse from the said report. Anand Grover responded by saying that the petitioner’s prayer is limited to decriminalization of conduct between adults, which, under Indian law, would mean persons 18 yrs or above. He clarified that child sex offenders will continue to be prosecuted under the reinterpretation that he seeks.
Justice Sikri observed that even in Section 375 (definition of rape), consent of girls below 16 yrs is invalid.
At 4 pm, Anand Grover inquired of the Judges’ whether they would proceed with the hearing in view of the forthcoming Court vacation. Ruling out the possibility of a hearing in the week before vacation, Justice Sikri said that the matter to be considered “part heard” and be listed on 2nd July 2008 at 2 pm.
At this stage, Mr. H.P Sharma sought the permission to read out a 1993 judgment of the House of Lords that upheld the conviction of gay men engaging in consensual sado- masochistic acts.
Justice Sikri remarked that a line must be drawn between what may be considered a crime even in the private domain.
Mr. Sharma opined that if the petitioner succeeds, there will be demands to repeal Hindu Marriage Act and other similar laws.
At this stage, JACK’s counsel interjected pointing out to a “defects” in NACO’s affidavit. Ms. Monica Garg admitted that the numbering was a typographic order.
Counsels for JACK and Mr. Singhal once again suggested that the ratio of the ONGC decision be followed and the issue be remanded to the Government.
Disagreeing with the submission, Justice Sikri said that ONGC matter involved a dispute between two government departments which then sought judicial intervention. On the other hand, the present case involves a dispute raised by a third party ( Naz Foundation India ) in which two departments have taken different stands.
Monica Garg then clarified that even the Home Ministry’s affidavit was qualified by the fact that the Section 377 is not invoked against any person(s).
Vrinda Grover, counsel for Voices against 377, interjected that her client has filed affidavits to show how the impugned section interferes with individual freedom and rights.
Justice Sikri then asked if a complaint under Section 377 can be lodged by the victim alone or by any person.
While Anand Grover answered that anyone can make a complaint, Singhal’ counsel argued otherwise.
Justice Midha inquired about the number of instances when the impugned section has been applied by the prosecution. Anand Grover clarified that there were 48 judgments from High Courts (appeals from orders of lower Courts).
In considering ways to clarify the Union of India’s stand, the Justices recorded that the Court seeks the assistance of a Law Officer with the Government to represent the Attorney General.
The matter is adjourned to Monday, 2nd July 2008 at 2pm.
Lawyers Collective HIV/AIDS Unit, India
Update – Section 377 Proceedings on July 23, 2008
Summary: The court returned from vacation and scheduled the hearing on 377 to resume in September. The petitioner in the case is the Naz Foundation, represented by Anand Grover from the Lawyers Collective. Supporting the petitioner is Voices Against 377, a coalition of rights based activists from various social justice movements in India. Two parties oppose the petitioner—Joint Action Council Kannur (JACK) which refutes the AIDS crisis in India and challenges the prevention methods used by the government and non-governmental organizations in India., and parliamentarian, B.P. Singhal from the ultraconservative Bharatiya Janata Party that strongly advocates criminalizing homosexuality.
The matter Naz Foundation (India) Trust v. Government of NCT, Delhi and Others, Writ Petition (Civil) No. 7455 of 2001 challenging the constitutional validity of Section 377, Indian Penal Code, came up, today, 23rd July 2008, before the Bench of Chief Justice A.P Shah and Justice Muralidhar of the Delhi High Court.
Earlier, a division bench (DB) comprising Justice Sikri and Justice Midha had begun hearing arguments in May 2008 before breaking for vacation. On account of a change in roster (that usually occurs during vacation), the matter came up before a different bench on 2nd July. This bench however, did not proceed with the hearing as the matter was “part heard” by the previous bench. Following administrative procedure, Justice Sikri released it on 4th July. The matter has now been assigned to a DB of Chief Justice A.P Shah and Justice Muralidhar.
The Chief Justice enquired into the status of parties and noted that of the respondents, Ministry of Health has filed an affidavit in support of the petitioner while the Ministry of Home has opposed them. The Court further noted that of the three interveners, one, i.e, Voices against 377, supports the petitioner while the other two - B.P Singhal and JACK oppose the petition.
The DB then asked whether pleadings were complete and the estimated time that parties would take to complete their arguments. On this basis, the Court set aside 18th and 19th September 2008 for the hearing with the option of extending it to 20th (Saturday), if necessary. On behalf of the Respondents, Additional Solicitor General – P P Malhotra mentioned the possibility of the Union filing an additional affidavit, if the two Ministries are able to reconcile their position. The Court allowed them to do so ahead of the final hearing. The Court directed the parties to file written submissions as well as submit compilation of judgments and other documents one week before the final hearing.
The matter is now listed for 18th September 2008.
Update submitted by Lawyers Collective HIV/AIDS Unit, India
Update – September 5, 2008
India’s court battle to decriminalize same-sex sexual behavior resumes this September in the Delhi High Court. At an international AIDS conference in Mexico in August, Anbumani Ramadoss, India’s Minister for Health advocated for the repeal of Section 377 of the Indian Penal Code, saying, “the law tends to drive gays and lesbians underground, hindering the country's efforts to prevent the spread of HIV and treat those with HIV and AIDS.”1 But some members of India’s Law Ministry are pushing for 377 to remain so it can be used to prosecute perpetrators of child sexual abuse. In response, Voices Against 377, a broad coalition of social justice activists, including children’s rights advocates, have written a letter to the press, pointing out that Section 377 in fact fails to protect children from sexual abuse and is more often used to target consenting adults for non-normative sex.
New Delhi 110017
Date: 2 Sep 2008
To: Sh Hansraj Bharadwaj
Honourable Minister for Law & Justice
Ministry of Law and Justice,
4th Floor, A-Wing, Shastri Bhawan
Sub: Decriminalisation of adult and consensual same-sex sexual acts by reading down Section 377 of the Indian Penal Code.
Ref: "Gays have no legal rights: ministry", Hindustan Times, 28 Aug 2008."
We write to you as child rights groups, groups working on issues of child sexual abuse, women's groups, sexual rights groups including groups working for the rights of gay, lesbian, bisexual and transgender people, NGOs working on a range of issues including health and HIV /AIDs prevention, human rights groups and concerned citizens from across the country.
This bears reference to a newspaper report titled "Gays have no legal rights: ministry", published in the Hindustan Times on 28 Aug 2008. It reports the Law Ministry's opposition to "scrapping of section 377 of the Indian Penal Code" and quotes an unnamed senior Law Ministry official thus, "… it [S. 377] acts as an effective deterrent against paedophiles and those with sick minds".
We write this letter to clarify some common misconceptions and to humbly urge you to view the matter more favourably please.
The PIL in the Delhi High Court related to S. 377 does not ask for its repeal. It seeks to read down the section in order only to remove consenting sexual acts between adults from its purview. In terms of such reading down, it would still be possible to prosecute instances of child sexual abuse under (an amended) S. 377.
S. 377 is not an effective deterrent against paedophiles. S. 377 was not intended to prosecute child sexual abuse, but has served as a partial means to do so in the absence of a specific law on the subject. While it has been used to deal with child sexual abuse that involve non penile-vaginal penetration, for example, penile penetration of the anus, it cannot be used to respond to other rampant forms of abuse, such as fondling, penetration with objects, fingers, etc. Unfortunately, such grave abuses in the case of girls, can only be prosecuted under S. 354 IPC (a lesser offence on outraging modesty), that has much lower punishment or at most, under S. 319 or 320 (for simple or grievous hurt), both very inadequate for addressing the offence in question. Likewise, most sexual abuse for boys would only be prosecuted inadequately if at all, under simple or grievous hurt, mentioned above. Therefore, and at best, in cases of child sexual abuse S. 377 is effective only in partial legal recourse.
In this context, we the undersigned are concerned about the absence of a comprehensive law on child sexual abuse. For child sexual abuse to be addressed in all its dimensions, for children to be protected and for child molesters and paedophiles to be dealt with appropriately, there is an urgent need for a new law. Retaining an outdated and unjust Victorian law (S. 377) that was not designed to address child sexual abuse, but has due the absence of such a law served to provide an inadequate and partial legal remedy is not the solution.
The legislative scheme of section 377, 354, and 376 are grossly inadequate to cover the range of sexual violence that children and women are subject to. Recognising the lacunae in the present framework, the 172nd Law Commission Report and the National Commission for Women in its 'Recommendation on Amendments to Laws Relating to Rape and Related Provisions', recommended the deletion of section 377.
In view of the injustice resulting from the absence of law on child sexual abuse, as well as injustice resulting from the criminalization of adult, consensual sex by S.377, we urge your support and urgent action in this matter of public interest.
Shivraj V. Patil
Union Home Minister
New delhi 110001
Dr. Anbumani Ramadoss
Union Minister for Health & Family Welfare
Ministry of Health & Family Welfare
Maulana Azad Road
New Delhi – 110011
1- Raymond Thibodeaux, “India's Anti-Gay Law Set for Biggest Court Challenge,” Voice of America, August 11, 2008, http://www.voanews.com/english/2008-08-11-voa40.cfm
Update – Naz Foundation v Union of India- Proceedings on September 25th, 2008
Chief Justice A.P. Shah and Justice S. Muralidhar heard arguments from the intervenors in the case, Voices Against 377, a coalition of human rights, child rights, women's rights and LGBT rights groups that had intervened in support of the petitioners Naz Foundation. Shyam Divan, the lawyer for the petitioners said that a wide group of persons from diverse backgrounds were supporting this petition.
Divan began his arguments by outlining the impact of criminalization on homosexuals. "This provision subjects male and female homosexuals as well as transgenders to repressive, cruel and disparaging treatment that destroys their sense of self esteem, inflicts grave physical and psychological harm on members of the LGBT community, inhibits the personal growth of these persons and prevents them from attaining fulfillment in personal, professional, economic and other spheres of life," he said. "Section 377 degrades such individuals into sub-human, second-class citizens, vulnerable to continuous exploitation and harassment."
Divan said that he would demonstrate, through records of incidents from across the country, as well as personal affidavits, reports and orders, that the continuance of section 377 on the statute book operated to brutalise a vulnerable, minority segment of citizens for no fault of theirs. "A segment of society is criminalized and brutalized to a point where individuals are forced to deny the core of their identity and vital dimensions of their personality", he said.
Referring to Professor Ryan Goodman's study on the impact of sodomy laws on LGBT persons in South Africa, Divan emphasized that condemnation expressed through law shapes an individual's identity and self-esteem. "They produce regimes of surveillance that serve to operate in a dispersed manner, and such laws serve to embed illegality within the identity of homosexuals."
He argued that section 377 was a direct violation of the identity, dignity, and freedom of the individual, and that it fostered widespread violence, including rape and torture of LGBT persons, at the hands of the police and society. "Section 377 allows for the legal and extra-legal harassment, blackmail, extortion and discrimination against LGBT persons." "The harm inflicted by section 377 radiates out and affects the very identity of LGBT persons. Sexuality is a central aspect of human personality, and in a climate of fear created by section 377 it becomes impossible to own and express one's sexuality, thereby silencing a core part of one's identity. It directly affects the sense of dignity, psychological well-being and self-esteem of LGBT persons," he said.
Diwan cited the Human Rights Watch Report report titled "Epidemic of Abuse: Police Harassment of HIV/AIDS social workers in India" which documented the harassment of HIV/AIDS workers in India. This report documents the police raid of the office of Bharosa Trust in Lucknow in June 2001, when the police arrested four health care workers and arrested them under section 377. They were charged with possessing obscene material that was nothing but educational material. However, since 377 was a non bailable offence, the health care workers were jailed for 48 days.
Referring to judges' observations related to the Criminal Tribes Act in the last hearing. Divan said that during the colonial period hijras were criminalized on the basis of their identity, and in 1897, the criminal Tribes Act was amended to include eunuchs. "While this act has been repealed, the attachment of stigma continues", he said.
The next incident (which occurred in April 2006) that Divan narrated was that of two adult lesbian women in Delhi who were in a relationship. The father of one of the women 'X' filed a complaint stating that she was abducted by her partner 'Y'. Y was arrested and brought before the police. X wanted to file a statement under section 164 of the Criminal Procedure Code saying that she had left her parental home of her own free will. However her application was refused, and the Magistrate, in his order recorded that it "appeared prima facie that under the guise of the section there were hidden allegations of an offence under section 377 as well. Divan pointed out that to constitute an offence under section 377 there needs to be penetration, and thereby the section could not be applied in this case. However, since section 377 served to criminalise all homosexuality, and not merely certain sexual acts, it applied to lesbians as well.
Divan then referred to an incident in Bangalore in 2004, which involved the rape of Kokila, a hijra who was a community mobiliser for Sangama, an organization that worked on the human rights of sexual minorities in Bangalore. Kokila was raped by ten goondas, and the police instead of helping her, tortured her in the police station. Diwan stressed that this incident happened because she was a transgendered person.
Justice Muralidhar asked Divan what recourse could be take for the offences committed against Kokila. Diwan said that this would be an instance where 377 could be used. He said that for non consensual acts and sex with minors, 377 should be retained in the statute book.
Diwan also referred to the Jayalakshmi case that was decided by Justice Shah in which the petitioner's sister, who was a hijra, committed suicide after being tortured and sexually assaulted by the police.
He talked about was the arrest of four gay men in Lucknow in 2006, for allegedly indulging in sex in a picnic spot. Reports by both Human Rights Watch and the National Coalition for Sexual Rights that this incident was actually a case of police entrapment, and that none of the men arrested were having sex in public.
Finally, Divan referred to the complaint filed by the Inspector of Police, Bangalore on September 11, 2006, where he states that he raided Cubbon Park and found 12 khojas who with "an intention to engage in unprotected, unnatural sex, were standing in the shade of trees and soliciting passers by". He said that by such unsafe, immoral, sexual acts, they may spread immoral diseases like AIDS, which may cause severe harm to the general public and thereby are likely to affect public health". Divan said that the affidavit of Madhumita, one of the persons arrested in the case showed that the police version was false. Madhumita states that she was standing at a bus stand when she was surrounded 5 constables, and arrested without giving any reason. She said that she was targeted by the police because she chose to dress as a woman, and that section 377 branded her as criminal and made her vulnerable to harassment and persecution from the police.
After the narration of these incidents, Divan talked about the recently framed Yogyakarta Principles on sexual orientation and gender identity to clarify what exactly was meant by these terms.
The right to dignity, said Divan, would be violated by section 377. Drawing from the South African Constitutional Court decision in the NCGLE case, Divan said, "Gay men are at risk of arrest, prosecution, and conviction simply because they seek to engage in sexual conduct which is part of their experience of being human. The homosexuality offence builds insecurity and vulnerability in the daily life of gay men. Such a law degrades and devalues gay men in the eyes of society. Such a provision invades and erodes the dignity of homosexuals."
Emphasising that the assault on dignity takes on various forms, Divan quoted Professor Goodman to argue that sodomy laws reinforce public abhorrence of lesbians and gays resulting in an erosion of self- esteem and self-worth in various ways. These included self-reflection, reflection of self through family, verbal harassment and dispute, residential zones and migrations, restricted public spaces, restricted movement and gestures, and conflict with law enforcement agencies. "Virtually every dimension of the lives of gay men have been affected", said Divan.
"Homosexuals suffer tremendous psychological harm. Fear of discrimination leads to a concealment of true identity…in the case of homosexuals it is the tainting of desire, it is the attribution of perversity and shame to spontaneous bodily affection, it is the prohibition of the expression of love, it is the denial of full moral citizenship in society because you are what you are, that impinges on the dignity and self worth of a group", he said.
Arguing that homosexuals have the right to privacy, Divan quoted from Justice Kennedy's decision in Lawrence v Texas. "Matters involving the most intimate and personal choices that a person may make are central to the personal dignity and autonomy of the individual and are protected from unwarranted intrusion. At the heart of personal liberty is the right to seek and develop personal relationships of an intimate character."
Diwan argued that the notion of autonomy extended beyond the spatial dimension "It projects beyond the home or the closet, since individuals to attain growth and fulfillment cannot be confined to such spaces," he said.
Diwan then outlined the global trends with respect to laws relating to homosexuality including the Yogyakarta Principles, the decision of the South African Constitutional Court, the Fijian High Court, the High Court of Hong Kong, the European Court of Human Rights, the Nepalese Supreme Court, and the UN Human Rights Committee.
He said that these judgements showed that moral disapproval could not be adequate rationale to keep 377 on the statute book. Chief Justice Shah then pointed out that the Indian Constitution provided that public morality could be a ground for restricting fundamental rights. Divan responded with an impassioned argument. "If it is a law which impinges on the dignity of an individual, not in a nebulous sense, but affecting the core of the identity of a person..Sexual orientation and gender identity are part of the core of the identity of LGBT persons. You cannot take this away..". He said, " Morality is insufficient reason in a case like this where you are criminalising a category and affecting a person in all aspects of their lives, from the time the person wakes up to the time they sleep. He said that NACO figures estimated that there were 25 lakh MSM in India, which is a minimum figure that we are talking about.
Divan said that if the court did not declare its relief limiting the scope of section 377 , it would cast a doubt on whether LGBT persons enjoyed 'full moral citizenship' of this country. "A moral argument cannot snuff out the right to life and personal liberty (of LGBT persons). "This is a law that affects what a person considers himself to be while facing the mirror", he said.
Addressing the point on whether the morality argument could be used to curtail the right to life and liberty, Divan cited Justice Thomas, who even while dissenting in the Lawrence case, characterized the Texas legislation as "an uncommonly silly law".
Chief Justice Shah asked if one could argue that section 377 would lead to disqualifications when it came to elections, employment, etc.
Post Lunch Session
Divan cited the decision of the Fiji High Court where the Fijian Court, faced with a similar dilemma as the Delhi High Court, had invalidated the relevant section to the extent that it declared inconsistent that part of the section that criminalized private consensual acts between adults. "This is what we recommend that the court does. The section should be interpreted in a manner in which the constitutionality is preserved, not struck down", he said.
Arguing that the grounds of discrimination in Article 15 and 16 of the Indian Constitution should be read to include discrimination based on sexual orientation, Divan cited the Toonen case (Tasmania) where the term 'other status' in the International Covenant of Civil and Political Rights was interpreted by the U.N. Human Rights Committee to include 'sexual orientation'. He relied on the Canadian Supreme Court decision in Vriend v Alberta and the Indian Supreme Court decision in Anuj Garg to argue that 'sexual orientation' should be read into 'other status' or the term 'sex' that already exists in Article 15. The Canadian Supreme Court held that despite the term 'sexual orientation not being specifically mentioned in the Canadian Charter, on the basis of historic social discrimination based on sexual orientation, it was declared an analogous ground of discrimination.
Chief Justice Shah pointed out that the recent submission Navneetan Pillai had raised, before the Human Rights Committee, the question of whether the term 'race' had to be understood only in its traditional sense. (This was in the context of the genocidal violence in Rwanda). Here, race was interpreted in a wider sense.
In order to show that there was increasing realization in India of the rights of LGBT persons, Divan pointed out that the Tamil Nadu government had enacted legislation for the welfare of aravanis (hijras), and that the Election Commission had provided a column for persons of the 'third gender;'.
Agreeing with Divan, Chief Justice Shah said, "This is also reflected in the statements made by the Health Minister and the Prime Minister."
Divan said that the estimated figures of the number of homosexuals was around 5-7 percent of any given population. He said that homosexuality was no longer a disease and had been removed from the list of disorders by the American Psychiatric Association. The amicus brief in the Lawrence case showed that the core basis of adult sexual attraction arose in adoloscence , which most people had no choice over.
Quoting from the affidavit filed by Gautam Bhan, Divan showed that the legal repercussions of section 377 hindered the lives of homosexuals even though society and family could be supportive of the issue. In his affidavit, Bhan states that he felt like a second-class citizen in his own country because of 377.
Argued Divan, "Section 377 operated to criminalise and stigmatise people for being themselves. There is no justification for such a law.."
Divan elaborated on the importance of the notion of identity. "We were discussing the issue of caste. In parts of India , men identify themselves by their caste. Women often identify by gender. For some, religious identity is paramount. When you are enumerating identity, a heterosexual person may not consider sexual orientation as important, but for a homosexual, sexual identity may be paramount. Sexual orientation is often the first thing that governs a person's life. As we saw in Gautam Bhan's affidavit, he asks why, though he is equal to persons in all other aspects, he still suffers from the stigma of section 377.
Divan said that he wanted to underscore the need for appropriate directions where persons of the LGBT community are alleged to have committed offences other than Section 377. "It is a widespread experience that law enforcement officials policing against obscene acts in the public, etc. proceed against LGBT persons not as they would in respect to heterosexuals but under Section 377 as well. This amounts to a particularly invidious discrimination inasmuch as an offence under Section 377 is non bailable and is punishable with a sentence upto life imprisonment. In contrast, a heterosexual person is generally booked under Section 294 of the IPC which carries a relatively lighter sentence of three months imprisonment and is a bailable offence", he said.
Said Divan, "It is submitted that the constitutionality of a provision must be judged keeping in view the changed situation with the passage of time. A law that is constitutional at a certain point of time may with the passage of time be held to be unconstitutional. (Anuj Garg). In matters impacting human rights, a progressive interpretation of the law is necessary (M. C. Mehta Vs. Union of India). In a distinct context the Supreme Court has observed "it is not necessary and indeed not permissible to construe the Indian Penal Code at the present day in accordance with the notions of criminal jurisdiction prevailing at the time when the code was enacted. The notions…have considerably changed then and now during nearly a century that has elapsed. It is legitimate to construe the code with reference to the modern needs, whenever this is permissible, unless there is anything in the code or in any particular section to indicate the contrary."
He said that the interpretation with respect to Section 377 urged by Voices Against 377 was in keeping with contemporary understanding of sexual orientation and gender identity. "It is consistent with Indian constitutional values; it is consistent with international human rights standards; it is consistent with the developments in this field of the law worldwide as reflected from legislative changes and decisions of the superior courts in countries across the world", he said.
Divan concluded his argument with an impassioned plea for emancipation for a large segment of India's population. "At its root, this case is about the Emancipation of a large segment of our people. All of them Indian, all of them citizens. The Constitution of India in one of the great emancipatory charters, lifting as it does from the status of wretchedness and subordination -- communities, castes, tribes and women -- to full Citizenship. This case is about an invisible minority of Indians that seek to unlock the assured liberties enshrined in the Constitution, but denied to them in an aspect of life that matters most to them: their own identity; their own sexuality; their own self," he said.
Said Divan, "As Justice Kirby puts it, The question is bluntly posed: can laws criminalising sexual minorities be any longer justified? Can violence and discrimination against this minority be tolerated or should the law adopt a leadership and educative role? In pluralistic societies, is it fair and realistic to demand that members of sexual minorities change their orientation or live completely celibate lives? Is it in society's interests to protect supportive mutual relationships, given that sexual minorities exist, have always existed and will continue to exist, whatever the law and society say?"
"LGBT persons are a permanent minority in society and have suffered in the past from severe disadvantages. Their dignity has been and continues to be degraded, severely undermining their sense of self-worth. The criminalization of homosexuality condemns in perpetuity this sizeable section of society and forces them to lead their lives in the shadow of harassment, exploitation, humiliation and cruel and degrading treatment at the hands of the law enforcement machinery. The Government of India estimates the MSM number at around 25 lacs. The number of lesbians and transgenders would run into several lachs of persons as well. This vast section of our society comprises honourable citizens who lead wholesome lives but, in the language of the South African Constitutional Court, are denied full moral citizenship. The "moral" dimension of their citizenship is denied to them, not because of any harm that they have inflicted on any other person, but only because they seek to live lives and build relationships -- so essential for the realization and fulfillment of life's goals -- with others, based upon a inner aspect of their being."
"To blot, to taint, to stigmatize and to criminalize an individual for no fault of his or hers, is manifestly unjust. To be condemned to life long criminality shreds the fabric of our Constitution. For the male homosexual in particular and by its expanded application to lesbians and transgenders as well, Section 377 has worked to silence the promise of the Preamble and Part III of the Constitution. It is the case of the Petitioner and those who support the petition that it is the liberating, emancipatory spirit underlying the Fundamental Rights invoked in this case that must prevail. The Constitution of India recognizes, protects and celebrates diversity. LGBT persons are entitled to full moral citizenship.", he said.
Divan then tendered a list of suggested operative directions for the court to consider while passing orders.
Chief Justice Shah asked the JACK lawyer R.S. Kumar what the gist of his arguments were. Unimpressed with the response, Chief Justice Sha said he wanted arguments related to the constitutionality of the provision, and not arguments related to locus of the petioners etc. He asked the Additional Public Prosecutor to continue tomorrow remarking that he did not expect too much constructive assistance from the intervenors JACK or B.P. Singhal. Dismissing the JACK counsel's claim that NACO was being prompted to file their affidavit by the petitioners, Chief Justice Shah remarked that it was perfectly permissible for different sections of society tomake all efforts to change the law , and in doing so to appeal to various bodies.
Update – Minutes of the Naz Case Challenging the Validity of Sec 377; September 29,2008
The matter came up only twenty minutes before the Court was due to rise. In the short time the Mr. P.P. Malhotra, (Additonal Solicitor General) made the following submissions for the Union of India Firstly, that the 172 Law Commission Report recommended certain changes in rape law and it was only if these changes could be effectuated that Sec 377 could be deleted. He was questioned by the judges as to whether his position was that the Court was bound to follow the recommendations of the Law Commission. Justice Shah noted that the Law Commission’s opinion had changed since its earlier Reports and that the Court was not bound by the law commissions recommendations and can still examine the Constitutionality of a statute regardless of what the Law Commission held. The Law Commission’s recommendations was one of the factors which the Court would consider but was not a determining factor.
Secondly, the ASG by reference to three Supreme Court judgements made the point that the Court cannot speak for parliament and can only hold what parliament has already stated.. No act of parliament can be struck down because of a misunderstanding of the statute by the Court.. Judges cannot make law but only interpret it. The law is clear, the will of parliament is the will of the people.
Thirdly, the ASG made submission related to the affidavits filed by NACO. His point was that NACO might say or anybody might say that there are 25 lakh people(MSM), but the Court was not bound by statements by any party be it NACO or anybody else. The Court’s role was to interpret the Constitutional validity of the statute and the affidavit was of no value in this regard.
J. Shah’s response was to say that while he appreciated the point of the role of the Court being to adjudicate Constitutional validity, but the Court could not make up its mind in the abstract. The determination of Constitutional validity had to be based on some material. For example to decide if Sec 377 violates the right to health implicit in Art 21 the Court will have to examine if crminalization of homosexuality results in a denial of the right to health.
The ASG countered by saying that the right to health of a few cannot mean that you make society unhealthy as others too have a right to a live a healthy life. J. Shah responded by saying that the state will have to show material to make the point that criminalization protects health. If the health of other parts of society was affected then the Court may have to balance interests.
J.Shah then referred to the minority opinion in Lawrence v. Texas and noted that the minorities viewpoint on whether the Texas statute should be struck down was that it was not necessary to read the Wolfenden Report…..
Before J. Shah could finish, the ASG interjected to say that the social circumstances, moral standards were very different here and the Court would have to consider that. The ASG further argued that people from the West came to India for our high moral standards. The matter was then posted for tomorrow morning when the ASG would continue his arguments.
Day Six of Naz Hearings; September 30, 2008
The ASG, PP Malhotra continued his submissions on behalf of the Union of India by stating that as per NACO’s affidavit 8% of the MSM population was infected by HIV, whereas HIV prevalence among the general population was only 1%. Presently 6% of the infected population of MSM is being covered by NACO interventions. The ASG read this out to make the point that the main cause for the disease was homosexuality.
To which J. Shah asked if it was his submission that the removal of Sec 377 would create a health hazard. .
The ASG responded by saying that if homosexuality was decriminalized it would result in a health hazard to society.
Moving on the ASG referred to two judgements on privacy ( Kharak Singh and Govind) to make the point that the right to privacy was not absolute and could be restricted by any valid law. His point was that the right to privacy under Art 21 could not be invoked as long as there was a valid law.
J. Shah asked the ASG if this position (that one cannot question constitutionality of a statute as long as the legislature had validly enacted it) was valid as the law had changed post the decision in Menaka Gandhi ?
The ASG contended that the decision in Menaka Gandhi related to a passport issue and sought to distinguish it on facts.
He went on to state that the question was about the extent of the right to privacy and whether a man had a right to do any act, which is an offence.
He went on to read Govind v. State to make the point that if regulations are framed in accordance with law , as it was in the case of Govind it will be upheld.. Validly enacted law ( Police regulations authorizing surveillance in the case of Govind) will be upheld as it will not be violative of Art 21.
The ASG then went on to reiterate his point that when there is an ‘apparent conflict between the right to privacy of the person and the interest of general public and society that this disease is not spread. Homosexuality is one of the causes, which affects this disease. If this is allowed what will happen ? There will be more sex and the disease will be spreading. He noted that he no objection to condoms being supplied as that was a precaution, but it must not be made legal. The law is clear and need not be read down.’
When the ASG was asked by the Bench as to whether the right to health was a part of the right to life under Art 21 he stated that yes , but not only the right to health of those affected but also society. Finally the ASG conceded that the right to health was included under Art 21. However he continued to stress that the right to health also included the right to health of others as well.
J. Shah posed the hypothetical question as to whether a law which discriminated against HIV positive people by denying them employment and isolating them would be valid ?
The ASG’s response was that no law is abstract and this right cannot be absolute. One has to see if other person’s rights are affected. He went on to note that the Supreme Court had said that it was a moral perversity. Tomorrow you will say that you have a right and exercise it in the road. We have to see limits, see other men’s rights as well and balance rights.
Speaking particularly of Lucy v. State of Bombay,(1990). Shah noted that the judgement ( which upheld the validity of a Goa law allowing for isolation of HIV/AIDS patients ) was, though not over ruled, outdated. He noted that Indian Law Institute had a seminar in 1994 after the judgement which was attended by numerous experts. Following this one can say that the law was never implemented inspite of eleven years having passed.
The ASG speculated that perhaps at that time one was not aware that this disease spread through blood, sex etc..
J.Shah noted that the ASG was relying on these judgements to show that AID’s was transmitted through homosexual sex. “However on affidavit you are silent on whether non-criminalization would lead to spread of HIV/AIDS. There is not a word on this. In fact the NACO affidavit says the exact opposite. Where do you get this point that de-criminalization would result in the spread of HIV/AID's. Show us some study, research on this point, surely we can’t rely on your word alone. In fact the consensus around the world is that criminalization will drive HIV underground….The judgement you rely on ( Vijaya v. Chairman SCCL ) AIR 2001 AP 502, upholds the validity of mandatory testing in the case of HIV/AIDS , but the Union of India has inspite of the judgement not made testing mandatory…You have to place some material to show that criminalization will stop HIV. In fact what flows from your argument is that we should not have HIV at all because we have Sec 377”.
The ASG went on to read some more judgements to make the point that the right to privacy was not absolute. He then went on to refer to the Gian Kaur judgment in which the Supreme Court held that the right to life did not include the right to die. He referenced some quotations from the judgment to make the point that global debates and Law Commission India recommendations will be insufficient to strike down a law.
The ASG was repeatedly asked by J. Shah as to whether that was the sum and substance of his Art 21 arguments. Whether he would make an argument on public morality as a justification for limiting Art 21 rights and also whether he would address the question of dignity. J. Muralidhar made the point that the other party had made a very strong oral submission as well as written submission that Sec 377 violated the right to life with dignity and the ASG had not addressed that limb of the Art 21 question. Dignity formed a part of the Preamble as well as UDHR. The ASG was also asked to address the Court on the question of whether sex in Art 15 and Art 16 included sexual orientation.
The ASG while assuring the Court that he would address the Court on those points went on to make submissions on the interpretation of Sec 377. He said the question under this provision was not whether intercourse was with consent or not but was whether it was against the order of nature. ‘He said that nature had devised scientific methods. You breath through your nose, eat through your mouth. Similarly order of nature would mean that intercourse should be in the place specified by nature in all human relationships even among animals. The phrase order of nature means that if a man wants to have intercourse with a woman, the place is specified.’
J. Shah asked the ASG to please address the Court on the Constitutionality of Sec 377 and to leave aside the question of interpretation of the meaning of Sec 377 as that question was not before the Court.
The Court rose and J. Shah proposed that if tomorrow was a holiday , the Court could sit the whole day and finish hearing the matter or if it was not a holiday could be heard for half a day. The ASG made the cryptic suggestion that ‘man was a social animal’ and that he would prefer not to sit on a holiday. J. Shah noted that there was a perception that the Court had many holidays and if the ASG did not wish to sit, and tomorrow was a holiday, then the Court would recommence hearing on Friday. Otherwise the Court will continue hearing the matter tomorrow morning.
2-Gautam Bhan, “Challenging the Limits of Law: Queer Politics and Legal Reform in India,” Because I Have A Voice, (eds) Arvind Narrain and Gautam Bhan, Yoda Press, 2005.
Published on September 25, 2008 | OutRight Action International an LGBT human rights organization