Section 377 hearing in Delhi High Court: May 19 & 22, 2008

From Fridae.com May 21, 2008

Delhi High Court begins hearings on India’s sodomy law

By Mayur Suresh

Fridae’s special New Delhi correspondent for the case, Mayur Suresh, was in court to report on the final oral arguments on Monday, May 19.

On Wednesday, the Delhi High Court will begin final arguments in the constitutional challenge to Section 377 of the Indian Penal Code, 1860, which criminalises ‘carnal intercourse against the order of nature’. Filed in 2001 by the Naz Foundation, a NGO working on HIV/AIDS and sexual health issues, the petition points to that the provision criminalises private sexual acts between consenting adult men. Naz Foundation is broadly arguing that this provision is hampering efforts at HIV/AIDS prevention and treatment since it drives gay men underground, and that it violates the constitutionally protected rights of equality and privacy. The petition has attracted its fair share of attention. In 2003, an association of AIDS-denialists, The Joint Action Council, Kannur, made them selves parties to the case and in their written submissions argued that there is no evidence that HIV/AIDS exists and that it is spread through sexual activity. Soon after, Mr. B.P. Singhal, a member of Parliament from the far-right Bharatiya Janata Party entered the fray and in his written petition before the Court argued that homosexuality was unnatural and against Indian culture. In October 2007, a coalition of human rights, LGBT rights, women’s rights and child rights organisations, known collectively as ‘Voices Against 377’ became a party to the case. They argued that Section 377, while rarely used in actual prosecutions, is used to target lesbian, gay, bisexual and transgendered people, and that sexual minorities face discrimination, harassment, blackmail, violence, rape and even murder as a result of this law. Oral Hearings Seven years after it was filed, final oral arguments began on Monday, May 19 before Justices Sikri and Midha of the Delhi High Court. The proceedings began on an amusing note with the federal Home Ministry upholding the law and the federal Health and Family Welfare Ministry all but supporting Naz Foundation against Section 377. The Home Ministry, in its affidavit, says the law is right as Indians largely disapprove of homosexuality and that the law should continue as a deterrent for such kind of “immoral” acts. The Ministry of Health and Family Welfare however, in its affidavit, says it is against enforcement of Section 377 as it pushes homosexual men underground, hampering efforts to control the spread of HIV/AIDS among this high risk population. Monica Garg, the lawyer for the federal government, told an amused Court that she would argue the brief of the Home Ministry but also draw from arguments made by the Health and Family Welfare Ministry. Anand Grover, lawyer for the Naz Foundation, introduced the case to Justices Sikri and Midha. Before a packed courtroom, he set out the structure of his case and said that the Naz Foundation challenges the constitutional validity of Section 377, on the grounds that it violated certain fundamental rights guaranteed under the Indian Constitution, namely Articles 14 (equality), 15 (non-discrimination), 19 (freedom of speech and expression) and 21 (life and liberty). The anti-sodomy law presently on the statute books in India, was taken by the British to all its colonies. Mr Grover pointed out however, that not only has the law been repealed or struck down in many of its former colonial possessions, like Canada, Australia and more recently Fiji and Hong Kong, but was also repealed by the United Kingdom, the birth place of the law, more than 40 years ago. He began his arguments by drawing upon the history of the section 377 and traced it back to biblical injunctions against buggery, and which found expression in British law as the ‘vice to horrible to be named.’ The apparent disgust with even naming or describing sodomy, is similarly expressed by Lord Macaulay, who drafted the provisions of the Indian Penal Code in the middle of the nineteenth century. He said that the provisions “relate to offences respecting which it is desirable that as little as possible be said… we are unwilling to insert either in the text or in the notes anything which could give rise to public discussion on this revolting subject, as we are decidedly of the opinion that the injury which could be done to the morals of the community by such discussion would more than compensate for any benefits which might be derived from legislative measures framed with greatest precision.” Mr Grover, stated that it is this refusal to define the offence clearly is what rendered the provision unconstitutional. The offence criminalises ‘carnal intercourse against the order of nature’ and he argued that it is not clear, on the face of it, of what this means. He argued that the section 377’s vagueness runs counter to any basic principle of modern criminal and constititonal law that a penal law must be clear and precise and everyone should know exactly what the law penalises. In its 148-year history, there have been a few reported cases and even in those cases there has been considerable debate on what sexual acts the section covered. He further argued that the law was unconstitutional because it did not take into account elements of consent. He said that the law was problematic particularly because it criminalised homosexual acts between adults even where the people involved consented to these acts. He then referred to the Wolfenden Committee report of the United Kingdom, which recommended the repeal of the British sodomy laws. Relying upon the point in that report that the enforcement of morals on acts committed in private was not the domain and proper function of criminal law, he stated that the very same question now presented itself before the Delhi High. Mr Grover is expected to continue his oral arguments till early next week. With Court holidays starting at the end of June for a month, a decision is not expected within the immediate future. The Court adjourned the matter and set the next date of hearing on May 21. Mayur Suresh is a lawyer in New Delhi. He will continue to report on the case.

From Fridae.com May 23, 2008

Section 377 hearing in Delhi High Court: May 22, 2008

By Mayur Suresh

Fridae’s special New Delhi correspondent for the case, Mayur Suresh, reports on the proceedings of May 22.

Delhi High Court – Proceedings on May 22, 08 (The Bench did not sit on May 21 as originally scheduled.) Naz Foundation (India) Trust v. Government of NCT, Delhi and OthersAnand Grover appeared for Naz Foundation while the respondents were represented by Monica Garg (Union of India), Ravi Shankar Kumar (JACK), H.P Sharma (Mr B.P Singhal) and Vrinda Grover (Voices against 377). Mr Anand Grover, counsel for the Naz Foundation, continued his arguments in the case challenging the constitutionality of India’s anti-sodomy law, Section 377 of the Indian Penal Code, 1860. Relying primarily upon the United Kingdom’s Wolfenden Committee Report of 1957 which recommended the repeal of the buggery and sodomy laws in the United Kingdom, Mr Anand sought to make three main points in today’s arguments. He argued that Section 377 was so wide that it covered even consensual sexual acts committed by adult men in the privacy of their homes and said that the State needed to show an overriding interest that would justify such a severe intrusion into the privacy of homosexual men. Mr Grover argued that, contrary to claims made by the Federal Home Ministry, morality is not an overriding concern that would justify the limitations on the right to privacy. He argued “While people may be shocked, disgusted or offended, this is not sufficient a reason to intrude into the bedrooms of homosexual men.” He further stated that the High Court has to decide whether the deemed immorality of certain acts was a sufficient reason to make them criminal. He brought it to the Court’s notice that a number of Asian countries, which have similar cultural mores as India, either never had criminalised homosexual sex, or have recently moved to decriminalise it and pointed to the laws of Nepal, Fiji, China, Cambodia, Thailand, Indonesia and Iraq. Referring to the arguments that the opponents of the petition made, that homosexuality leads to the break up of the family and that laws against homosexuality would prevent homosexual men from seeking liasons elsewhere, he stated that often gay men are forced into marriage in order to conform with dominant heterosexual mores in the country. He further argued that the Section 377 of the Indian Penal Code has never and will never prevent gay men, married or otherwise from having sex with other men and only further serves to deepen discrimination and prejudice against gay men. He said that the Naz Foundation, the party challenging the anti-sodomy law, was only asking for consensual acts to be decriminalised. Thus Section 377 would still be applicable in cases where the sexual acts were non-consensual, and done under coercion or force. Rubbishing the argument that the striking down of Section 377 would lead to increased paedophilia, he argued that Naz Foundation was only asking for the decriminalising of consensual acts between those parties who could give valid consent and minors clearly could not. As Justice Sikri put it “Just as minor girls cannot give consent to sexual acts under section 375 (the provision on rape), the same thing will apply here” (sic). He also stated that a number of Government bodies had recommended the repeal of Section 377. In particular he pointed to the 172nd Report of the Law Commission of India which stated that Section 377 should be repealed and a new section be included to specifically deal with child sexual abuse. He stated that the complications with Section 377 arise from the fact that while it is used to target homosexual men, it is the only law available to counter child sexual abuse. And hence, following the lines of the Law Commission, the Naz Foundation was only asking for the Court to interpret Section 377 to exclude consensual acts between adults. At which point, Mr Sharma, counsel for Mr B.P. Singhal, an intervenor in this case, stated that consent could never validate a crime and he referred to the United Kingdom House of Lords decision in R. v. Brown which upheld the assault conviction of men who were caught in the performance of sadomasochistic practices. Mr Sharma further pointed out that this case was merely an academic exercise since there was no arrest, prosecution or conviction under Section 377 and hence the petitioners had no immediate reason to challenge the sodomy law. Ms Monica Garg, counsel for the federal Government then clarified that the Home Ministry’s affidavit stated that Section 377 has not used against any persons. Ms Vrinda Grover, counsel for Voices against 377, interjected that her client has filed affidavits to show that while arrests are rarely made that homosexual men, transgendered persons were illegally detained on a regular basis. She further stated that the police rarely register any arrests since they are merely out to make quick money off LGBT people who are easy prey because of Section 377. Justice Midha inquired about the number of instances when the Section 377 has been applied by the prosecution. Mr Anand Grover clarified that there were 48 judgments from High Courts (appeals from orders of lower Courts) but reiterated Ms Vrinda Grover’s point that Section 377 is used arbitrarily and arrests are rarely registered. Counsel for the Joint Action Council Kannur, an opponent to the petition in this case, again pointed out to the fact that it is not tenable for two ministries the federal government to have two contradictory positions with regard to the same matter. The Court in response, requested that the Attorney-General be present at the next date of hearing to clarify the matter and to present the views of the federal government at the next date of hearing. Given that the Court holidays begin next week, the Court posted the next date for hearing on July 2, 2008. Reports in the Indian media about the case Meanwhile in India’s most populated city Mumbai, LGBT activists were making their voices heard. The Mumbai edition of the Hindustan Times on May 20 reported that “Gay rights activists quietly but confidently made themselves heard on Monday. Nine of them boarded several local trains and stopped at almost every station on the Central and Western Lines, holding placards which read ‘We are against 377’ and ‘It’s better to love than hate’. While in the southern city of Chennai (formerly Madras) local LGBT activists organised a condolence meeting for Christy Jayanthi Malar and Rukmani, two married women who were in a relationship with each other. They were being forced apart by their families, and rather than being separated they committed set themselves ablaze. They passed away on May 18, 2008. An editorial in the Indian Express on May 21, 2008, commented: “It is indeed unacceptable that in 21st-century India we still have a law which denies ‘the right to love’ to a section of the Indian population. If the constitutional promise of equality is to have any meaning at all, then homosexuals too, like heterosexual married couples, should have the freedom to engage in intimate sexual acts without being subjected to state harassment… The question is whether India will live out the meaning of its creed as the world’s largest democracy or will keep company with fundamentalist and tyrannical regimes, to be seen in certain parts of the globe, by continuing to retain the archaic Sec 377 of the IPC (Indian Penal Code).”