Arguments in the case against Section 377 IPC

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 homos*xuals. "This provision subjects male and female homos*xuals 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 homos*xuals."



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 s*xuality, 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 homos*xuality, and not merely certain s*xual 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 s*xual 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 s*x 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 s*xually assaulted by the police.



He talked about was the arrest of four gay men in Lucknow in 2006, for allegedly indulging in s*x 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 s*x 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 s*x, were standing in the shade of trees and soliciting passers by". He said that by such unsafe, immoral, s*xual 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 s*xual 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 s*xual conduct which is part of their experience of being human. The homos*xuality 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 homos*xuals."



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.



"Homos*xuals suffer tremendous psychological harm. Fear of discrimination leads to a concealment of true identity…in the case of homos*xuals 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 homos*xuals 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 homos*xuality 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 s*xual 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 's*xual 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 's*xual orientation' should be read into 'other status' or the term 's*x' that already exists in Article 15. The Canadian Supreme Court held that despite the term 's*xual orientation not being specifically mentioned in the Canadian Charter, on the basis of historic social discrimination based on s*xual 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 homos*xuals was around 5-7 percent of any given population. He said that homos*xuality 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 s*xual 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 homos*xuals 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 heteros*xual person may not consider s*xual orientation as important, but for a homos*xual, s*xual 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 heteros*xuals 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 heteros*xual 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 s*xual 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 s*xuality; their own self," he said.

Said Divan, "As Justice Kirby puts it, The question is bluntly posed: can laws criminalising s*xual 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 s*xual minorities change their orientation or live completely celibate lives? Is it in society's interests to protect supportive mutual relationships, given that s*xual 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 homos*xuality 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 homos*xual 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.