(contd.)
- the report of the Expert Group on Size Estimation of Population with High Risk Behaviour for NACP-III Planning, January 2006 estimated that there are about 25 lakh MSM (Men having sex with men). The National Sentinel Surveillance Data 2005 shows that more than 8% of the population of MSM is infected by HIV while the HIV prevalence among the general population is estimated to be lesser than 1%.
So number of gays nationwide is approx 0.2% of total population. The number of lesbians and transgenders is said to be several lacs as well.
According to the submissions of NACO, those in the High Risk Group are mostly reluctant to reveal same sex behaviour due to the fear of law enforcement agencies, keeping a large section invisible and unreachable and thereby pushing the cases of infection underground making it very difficult for the public health workers to even access them.
The National Baseline Behaviour Surveillance Survey (NBBSS of 2002) which indicates that while 68.6% MSM population is aware about the methods of preventing infection, only 36% of them actually use condoms. It is stated that the very hidden nature of such groups constantly inhibits/impedes interventions under the National AIDS Control Programme aimed at prevention.
Thus NACO reinforces the plea raised by the petitioner for the need to have an enabling environment where the people involved in risky behaviour are encouraged not to conceal information so that they can be provided total access to the services of such preventive efforts.
These gems for those that think custodial abuse is a lightweight charge
To illustrate the magnitude and range of exploitation and harsh and cruel treatment experienced as a direct consequence of Section 377 IPC, respondent No.8 has placed on record material in the form of affidavits, FIRs, judgments and orders with objectively documented instances of exploitation, violence, rape and torture suffered by LGBT (Lesbian-Gay-Bisexual-Transgender) persons. The particulars of the incidents are drawn from different parts of the country.
- In an instance referred to as “Lucknow incident – 2002” in the report titled 'Epidemic of Abuse : Police Harassment of HIV/AIDS Outreach Workers in India' published by Human Rights Watch, the police during investigation of a complaint under Section 377 IPC picked up some information about a local NGO (Bharosa Trust) working in the area of HIV/AIDS prevention and sexual health amongst MSMs raided its office, seized safe sex advocacy and information material and arrested four health care workers.
Even in absence of any prima facie proof linking them to the reported crime under Section 377 IPC, a prosecution was launched against the said health care workers on charges that included Section 292 IPC treating the educational literature as obscene material. The health workers remained in custody for 47 days only because Section 377 IPC is a non-bailable offence.
- Then there is a reference to 'Bangalore incident, 2004' bringing out instances of custodial torture of LGBT persons. The victim of the torture was a hijra (eunuch) from Bangalore, who was at a public place dressed in female clothing. The person was subjected to gang rape, forced to have oral and anal sex by a group of hooligans. He was later taken to police station where he was stripped naked, handcuffed to the window, grossly abused and tortured merely because of his sexual identity.
- Reference was made to a judgment of the High Court of Madras reported as Jayalakshmi v. The State of Tamil Nadu, (2007) 4 MLJ 849, in which an eunuch had committed suicide due to the harassment and torture at the hands of the police officers after he had been picked up on the allegation of involvement in a case of theft. There was evidence indicating that during police custody he was subjected to torture by a wooden stick being inserted into his anus and some police personnel forcing him to have oral sex. The person in question immolated himself inside the police station on 12.6.2006 and later succumbed to burn injuries on 29.6.2006. The compensation of Rs.5,00,000/- was awarded to the family of the victim.
The material on record, according to the respondent No.8, clearly establishes that the continuance of Section 377 IPC on the statute book operate to brutalise a vulnerable, minority segment of the citizenry for no fault on its part. The respondent No.8 contends that a section of society has been thus criminalised and stigmatized to a point where individuals are forced to deny the core of their identity and vital dimensions of their personality.
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Opening argument
During the course of submissions, extensive references were made to voluminous material which included various reports, publications, articles, Indian and foreign judgments including those of US Supreme Court, European Commission of Human Rights, Human Rights Committee etc. Counsel also provided comprehensive written submissions supported by authorities.
The prime arguments FOR can be summarised as follows
- Section 377 IPC violates the constitutional protections embodied in Articles 14, 19 and 21.
It suffers from the vice of unreasonable classification and is arbitrary in the way it unfairly targets the homosexuals or gay community. It also unreasonably and unjustly infringes upon the right of privacy, both zonal and decisional. It also conveys the message that homosexuals are of less value than other people, demeans them and unconstitutionally infringes upon their right to live with dignity. Section 377 IPC also creates structural impediments to the exercise of freedom of speech and expression and other freedoms under Article 19 by It suffers from the vice of unreasonable classification and is arbitrary in the way it unfairly targets the homosexuals or gay community. It also unreasonably and unjustly infringes upon the right of privacy, both zonal and decisional. It also conveys the message that homosexuals are of less value than other people, demeans them and unconstitutionally infringes upon their right to live with dignity. Section 377 IPC also creates structural impediments to the exercise of freedom of speech and expression and other freedoms under Article 19 by homosexuals or gays and is not protected by any of the restrictions contained therein.
Furthermore, morality by itself cannot be a valid ground for restricting the right under Articles 14 and 21. Public disapproval or disgust for a certain class of persons can in no way serve to uphold the constitutionality of a statute.
In any event, abundant material has been placed on record which shows that the Indian society is vibrant, diverse and democratic and homosexuals have significant support in the population. It is submitted that courts in other jurisdictions have struck down similar laws that criminalise same-sex sexual conduct on the grounds of violation of right to privacy or dignity or equality or all of them.
The counter argument
learned ASG submits that
- there is no fundamental right to engage in the same sex activities. In our country, homosexuality is abhorrent and can be criminalised by imposing proportional limits on the citizens' right to privacy and equality.
- right to privacy is not absolute and can be restricted for compelling state interest. Article 19(2) expressly permits imposition of restrictions in the interest of decency and morality. Social and sexual mores in foreign countries cannot justify de-criminalisation of homosexuality in India.
- Section 377 IPC is not discriminatory as it is gender neutral.
- If Section 377 IPC is struck down there will be no way the State can prosecute any crime of non-consensual carnal intercourse against the order of nature or gross male indecency.
- Learned ASG further contends that spread of AIDS is curtailed by Section 377 IPC and de-criminalisation of consensual same sex acts between adults would cause a decline in public health across society generally since it would foster the spread of AIDS.
- that Section 377 IPC does not impact upon the freedom under Article 19(1) as what is criminalised is only a sexual act. People will have the freedom to canvass any opinion of their choice including the opinion that homosexuality must be de-criminalised. He, therefore, submits that the Section 377 IPC is constitutionally valid.
- the petitioner's arguments with respect to the spread of HIV and AIDS are founded on propaganda and are not factually correct. Section 377 IPC prevents HIV by discouraging rampant homosexuality.
- Indian society considers homosexuality to be repugnant, immoral and contrary to the cultural norms of the country.