Section 377

[vebk]

One of the things that we forget it that this was not a policy decision by the government (i.e. legislature) but a judicial decision as to the constitutional validity of a law. While the former has a much larger scope for public opinion, there is little room (some but very little) in the latter.

Some sections in society also have it in for Muslims, Christians, Hindus etc. There are people of religion X who honestly, deeply and passionately believe that people of religion Y are destroying the culture of the world, are against the word of god and against the natural order. Would we tolerate a law criminalizing islam or christianity (or hinduism)? The legislature may be silly enough (e.g. if hindu fundamentalists come to power) in their vote bank politics, but like with many other issues, the courts come to save our sanity.

The saddest thing is that most people in the world who have deeply hateful and passionate opinions on another class, group, race, religion etc. have little to no interaction with them. IMHO there is little difference between racists and homophobes. Bigots are bigots.

 

[Sushubh]

i forgot what i learnt way back in school... as far as i remember. government makes the laws and courts can only implement them. so if the government decides to revert any changes or add more restrictions, they can probably just amend the law in question and then the courts would have no choice. right?

 

[manu1991]

^^ AFAIK , courts have more superiority than the government when its a issue of fundamental rights , and since the court has termed this a violation of human rights i guess they have full authority . I am not sure about this though

 

[vebk]

You are somewhat correct. Courts don't make new laws (in terms of codification) but they can interpret laws and also make things like guidelines, rules etc. On constitutional matters, the Supreme Court is.. well... supreme. If the Supreme Court holds that to discriminate against consensual same-sex relationships by criminalizing them is unconstitutional, then it's done. The legislature and executive can't do anything about it. Even if they try to so discriminate in a convoluted or veiled fashion, the court will strike it down. Then the only institution that can overrule it is the Supreme Court itself. (Sometimes the court may after many years or decades change such decisions in light of social changes).The Constitution is the supreme law in this country. And the Supreme Court has held that the legislature cannot make any law that would alter what is called the "basic structure" of the Constitution. The basic structure includes the Fundamental rights. And if the Supreme Courts interprets that Article 21 (right to life) includes the right to live by your own sexual orientation, then the debate is over.Read the judgment - it discusses some of the landmark constitutional judgments over the years.

 

[blr_p]

Thx for the link to the ruling veb..105 pages and all

Here are some of the points

- The case was filed as a PIL. They are not asking to remove 377 altogether just to decrinimalise the consensual part between adults. It remains as is wrt to minors as well as animals. So any animal & child safety activists need not worry

The petitioner is the Naz Foundation and the Respondents are
- NACO (National Aids Control Organisation) under the Ministry of Home Affairs and Ministry of Health & Family Welfare
- Delhi State Aids Control Society
- Commissioner of Police, Delhi
- Some individuals & NGOs

- Why the petition was brought
- The petitioner claims to have been impelled to bring this litigation in public interest on the ground that HIV/AIDS prevention efforts were found to be severely impaired by discriminatory attitudes exhibited by state agencies towards gay community, MSM or trans-gendered individuals, under the cover of enforcement of Section 377 IPC, as a result of which basic fundamental human rights of such individuals/groups (in minority) stood denied and they were subjected to abuse, harassment, assault from public and public authorities.

- studies of Section 377 IPC jurisprudence reveal that lately it has generally been employed in cases of child sexual assault and abuse. By criminalising private, consensual same-sex conduct, Section 377 IPC serves as the weapon for police abuse; detaining and questioning, extortion, harassment, forced sex, payment of hush money; and perpetuates negative and discriminatory beliefs towards same-sex relations and sexuality minorities; which consequently drive the activities of gay men and MSM (men-who-have-sex-with-men), as well as sexuality minorities underground thereby crippling HIV/AIDS prevention efforts. Section 377 IPC thus creates a class of vulnerable people that is continually victimised and directly affected by the provision. It has been submitted that the fields of psychiatry and psychology no longer treat homosexuality as a disease and regard sexual orientation to be a deeply held, core part of the identities of individuals.

- It is averred that no aspect of one’s life may be said to be more private or intimate than that of sexual relations, and since private, consensual, sexual relations or sexual preferences figure prominently within an individual’s personality and lie easily at the core of the “private space”, they are an inalienable component of the right of life. Based on this line of reasoning, a case has been made to the effect that the prohibition of certain private, consensual sexual relations (homosexual) provided by Section 377 IPC unreasonably abridges the right of privacy and dignity within the ambit of right to life and liberty under Article 21. The petitioner argues that fundamental right to privacy under Article 21 can be abridged only for a compelling state interest which, in its submission, is amiss here.

- Two contradictary affidavits were filed by the two ministries below..

So amish, warthog et al, this ministry is batting for you

The Ministry of Home Affairs files a petition to retain 377 as is, on the grounds..
- that it helps in allegations of child abuse and complements shortcomings in rape laws and not mere homosexuality. That 377 has been used where bodily harm is intended and/or caused.
- that removing the clause would be misconstrued as providing grounds for unfettered homosexuality.
- And finally that conceding ground in favour of right to respect for private and family life, in the submission of Union of India, interference by public authorities in the interest of public safety and protection of health as well as morals is equally permissible.

Further justification is made by reference to the 42nd report of the Commission wherein it was observed that Indian society by and large disapproved of homosexuality, which disapproval was strong enough to justify it being treated as a criminal offence even where the adults indulge in it in private.

Union of India submits that law cannot run separately from the society since it only reflects the perception of the society. It claims that at the time of initial enactment, Section 377 IPC was responding to the values and morals of the time in the Indian society. It has been submitted that in fact in any parliamentary secular democracy, the legal conception of crime depends upon
political as well as moral considerations notwithstanding considerable overlap existing between legal and safety conception of crime i.e. moral factors.

It is sought to be pointed out that even the reforms in the nature of Sexual Offences Act, 1967 (whereby buggery between two consenting adults in private ceased to be an offence in the United Kingdom) had its own share of criticism on the ground that the legislation had negatived the right of the state to suppress 'social vices'.

Union of India argues that Indian society is yet to demonstrate readiness or willingness to show greater tolerance to practices of homosexuality. Making out a case in favour of retention of Section 377 IPC in the shape it stands at present, Union of India relies on the arguments of public morality, public health and healthy environment claiming that Section 377 IPC serves the
purpose.

The ministry of Health & Family Welfare wants it amended for reasons we have been talking about since the begining.

Bleh, im only at pg 13, gonna be a long time before i finish this..

 

[vebk]

Thx for the link to the ruling veb..105 pages and all

- The petitioners are
- NACO (National Aids Control Organisation) under the Ministry of Home Affairs and Ministry of Health & Family Welfare
- Delhi State Aids Control Society
- Commissioner of Police, Delhi
- Some individuals & NGOs

You're welcome. btw slight correction - Those are the respondents you have listed above. The Petitioner was Naz foundation.

 

---

[amish]

^ oh great. Another bigot. :wall:

Now thats not fair, just because u think u r right.

 

[manu1991]

Thats totally fair , considering the language he used
BAN and CRUSH Homosex.Let them be asexual.

 

[vebk]

@amish: This is not a matter of right or wrong. Read the definition of bigot:

big⋅ot
  /ˈbɪgət/ Show Spelled Pronunciation [big-uht]
–noun
a person who is utterly intolerant of any differing creed, belief, or opinion.
-n. One who is strongly partial to one's own group, religion, race, or politics and is intolerant of those who differ.
- A person who regards his own faith and views in matters of religion as unquestionably right, and any belief or opinion opposed to or differing from them as unreasonable or wicked. In an extended sense, a person who is intolerant of opinions which conflict with his own, as in politics or morals; one obstinately and blindly devoted to his own church, party, belief, or opinion.

The intolerance and stubborn belief in some sort of "natural order" coming from some people on this thread stinks like a cheap cologne.

There's one thing in having certain perceptions. Most people in the world don't understand gay people. But it's another thing to be so hateful and so prejudiced. I don't particularly like hanging around gay people who act effeminate and flamboyant, mainly because I think they are being fake and are hurting their own cause. But I certainly don't wish them death, castration etc. Live and let live.

 

[blr_p]

(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.



----------

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.