Delhi High Court’s refuses to change law
Section 377 criminalizes sodomy and other acts against the order of nature. A petition by Naz India asked the Court to declare it should no longer apply to consenting adults
As representatives of queer support groups from across the country we deplore the Delhi High Court’s decision not to reconsider their decision last September on Naz India’s petition for a reading down of Section 377 of the Indian Penal Code.
Section 377 criminalizes sodomy and other acts against the order of nature; and by extension this relic of the Raj is used to suppress the voices of gays, lesbians and transgenders in India and harass them in their normal lives. Most developed countries around the world have realised the folly of criminalising gays, lesbians and transgenders who ask for nothing more than to be allowed to lead their lives in peace.
Naz India’s petition did not ask the High Court to remove Section 377. It simply asked it to declare that it should no longer apply to consenting adults. In support of this it cited the problems faced by gays, lesbians and transgenders in leading their lives, as well as the practical problems caused by Section 377 in areas like HIV/AIDS communication. Because of Section 377 activists engaged in the vital effort of combating AIDS could be considered to be engaging in illegal activities.
The Delhi High Court’s response to this last September was to summarily dismiss the case without even considering the argument. The High Court didn’t rule either way on Section 377, but instead dismissed the case on the grounds that the petition did not prove evidence of people who had actually suffered from Section 377, for example in the form of a FIR. In the absence of such evidence the Court questioned what the locus standi of Naz was in filing this petition.
This decision was highly questionable - and from much more than just our viewpoint.
The Court’s decision seemed to question the very basis of Public Interest Litigation (PIL). The very essence of PILs are that they seek to use the law on behalf of people who cannot face the law by themselves. And that is exactly the situation of the thousands of gays, lesbians and transgenders in this country who precisely because of laws like Section 377 are forced into silence, sometimes permanently.
What examples could we cite? Could we call on Geethalakshmi and Sumathi, two
Young women in Erode district in Tamil Nadu, whose dead bodies were found along withnotes saying that they committed suicide because their families could not accept their love for each other? Could we call on Bindu and Gita of Cheruvayoor in Kerala who had killed themselves because their relatives had found out they were lesbians? Could we call on Suresh and Krishnakumar of Shoranur in Kerala who friends said were inseparable from childhood, but consumed poison when they realised what their lives would be an intolerant society?
Or of those who are still living could we except the men and women we know who have been brutalised by their families, harassed by their neighbours and always under the threat from the police for doing no more than leading their lives - could we expect them to add to their problems by exposing themselves to the publicity of a court case? Could we expect the young men who have been tricked and beaten up by the organised gangs who entrap gay men into reliving their trauma publicly in court?
All these stories are well documented by queer groups across the country, so why are there no police cases? In many cases gays, lesbians and transgenders have approached lawyers to file cases - only to be given the dispiriting, but practical advice that the remedy might be worse than the cause. Rather than deal with their case, the police are all too likely to treat the gay, lesbian or transgender person as the criminal - as indeed they could be considered under Section 377. It is well established that Section 377 is used by the police to harass gays, lesbians and transgenders. The lack of FIR’s doesn’t mean that the section is not being used, but that the use is most often against the people who are seeking to file the PIL.
The concept of PILs were created exactly for such circumstances, but the Court was telling us that we could not use them. For this reason we had asked the Delhi High Court to review their decision. The point of law involved here on PILs is so basic - and of far wider application that just gay and lesbian issues - that we were hopeful they would reconsider their decision. Unfortunately yesterday in Court the judges refused to reconsider their verdict and it is this refusal to even consider our case and this attack on the principles of PILs that we are protesting. It isn’t even the question of gay, lesbian and transgender rights that concern us now, but our very right to be allowed to fight for them in the Courts.
That battle will continue and we are very hopeful for its success. Regardless of the Delhi High Courts decision - which in any case did not even touch on this issue - the logic for granting gays, lesbians and transgenders the simple right to a normal existence that every other Indian has is too compelling to be brushed aside by the Bench. The Delhi High Courts decision is not so much a setback as an illogical diversion, and we are hopeful that our protest will be heard and this mistake set right.
Naz Foundation / Anchal Trust/Lawyers Collective / Vikram Doctor / The Humsafar Trust
Court’s rejection of gay law distresses city
By: Gigil Varghese
November 8, 2004
Mumbai’s homosexual community is disappointed with the Delhi High Court’s rejection of a plea seeking legitimacy of homosexuality, for the second time in two years. The Delhi High Court had earlier rejected a similar plea filed in September 2002.
A division bench of the Delhi High Court, comprising judges B C Patel and B D Ahmed, rejected the plea on Thursday.
The plea was filed by Naz Foundation, Delhi, an NGO working for gay rights. The foundation sought a review of Section 377 of the Indian Penal Code (IPC), which terms homosexuality illegal.
Commenting on the order, Vivek Deewan of the Lawyers Collective said, „The Court did not agree that such a case could be filed in public interest representing a community, without showing instances where someone had been harmed under Section 377.”
The High Court had specifically asked for occasions where the law had been used against a homosexual in a discriminatory manner.
Ashok Rao Kavi of the Hamsafar Trust said, „The police and goondas will use this to harass, ill-treat, blackmail and extort money from us, and frankly I fail to understand why the state has to interfere between two consenting adults doing something in private.”
Reacting to the judges‚ reason for dismissal, Vikram, from Gay Bombay Trust, felt furnishing specific instances of discriminatory use of Section 377 is difficult.
“The court needs evidence of lesbians, gays and eunuchs who have been harmed by Section 377. But a victim would be reluctant to file a case; and if he does, he could be arrested. Either way, he becomes the victim.”
Geeta Kumana, a lesbian activist of the Anchal Trust, said, „We are disillusioned because our fundamental right to challenge a law that penalises our sexuality has been struck down.”
Kumana however appreciated the fact that the plea was not rejected outright. The court had earlier admitted the plea and requested National Aids Control Organisation and the Union Government to consider it, before issuing the final judgement.
What the law says
Section 377, IPC states: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine.”
Various Indian NGOs