The road ahead Section 377 in India

The action of the Delhi High Court to repeal the 150 years old Indian Penal Code (IPC) Section 377 legislation was a landmark legal decision to strike down a punitive barrier and impediment to effective public health action. July 2012 marks the third anniversary of this ground-breaking judgment. Since July 2009 Delhi High Court judgment, there are fifteen Special Leave Petitions (SLPs) filed against this judgment in the Supreme Court and five SLPs filed in support of the Delhi High Court judgment. The decision from the Supreme Court is yet to come. In a very timely roundtable consultation, The Road Ahead Section 377 Judgment, organized by the United Nations Development Programme (UNDP) India, Naz Foundation International (NFI), Article 39: Centre for Legal Aid and Rights, and Project DIVA, different experts and participants raised key issues for what lies ahead of this judgment.

IPC Section 377 read: ‘Unnatural offenses: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.’
Over the past years, NGOs that have been working with marginalized populations such as men who have sex with men (MSM), transgender people or sex workers or injecting drug users (IDUs), have faced the ugly brunt of such punitive laws. Not only this impedes public health programmes for marginalized communities but also sets back the progress made in terms of human rights and social justice.

In a 105-page judgment, a bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar had said in July 2009 that if not amended, section 377 of the IPC would violate Article 14 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law. This judgment decriminalized same-sex behavior in the country and made way for safer and effective health and social interventions as well for LGBT community.

While the Delhi High Court judgment was hailed as a landmark decision for its strength and for the support it gave to the gay community in India, there was simultaneously a rising criticism from several sections of the society. Fifteen SLPs were filed in the Supreme Court of India challenging this decision and five SLPs were filed in favour of this Delhi High Court decision. The sexual minority communities continue to struggle with entrenched social and religious biases that exist against them.  A slow change of attitudes will hopefully allow the other rights of the community to be affirmed by the mainstream institutions.  

The movement to repeal Section 377 was first initiated by AIDS Bhedbhav Virodhi Andolan (ABVA) in 1991. Their historic publication ‘Less than Gay: A Citizen's Report’, spelled out the problems with Section 377 and asked for its repeal. This case was revived in 2001 when Naz Foundation (India) Trust (with legal technical support from Anand Grover and his team at Lawyers' Collective) filed a public interest litigation in the Delhi High Court, seeking legalisation of homosexual intercourse between consenting adults. Over the years forums such as ‘Voices against Section 377’ played a key role in engaging not only LGBT groups across the country but also broader civil society in the fight for fundamental rights enshrined in our constitution for those who practice same-sex behavior.

Anand Grover, who heads the Lawyers’ Collective and is also the UN Special Rapporteur on Right to Health, said that Section 377 was based upon the British law of 1860s. This old colonial law was a curse of the British and they have done away with it in their own context but we were continuing with this law till the Delhi High Court judgment came in July 2009. 

Reflecting upon the case, Anand Grover said that the court was faced with a constitutional challenge. “In our constitution we have fundamental rights and if a law violates the fundamental rights, it can be struck off in India. This is not possible to do so in UK but can be done in US” said Grover. Right to Equality, Right to life, interpreted as right to privacy, dignity, health, and non-discrimination, were the key fundamental rights that were getting violated of LGBT community due to Section 377. “Everybody has a right to be treated as equal, and enjoy right to privacy and dignity, and state is not allowed to come into anyone’s private sphere and knock on one’s door to ask what type of sex is taking place between two consenting adults - this is not permissible” said Grover. It is only permissible when it is a case of rape or other forms of sexual assaults for instance. NACO’s affidavit in the court that section 377 impedes their HIV interventions for one of the high risk groups was important to highlight how Section 377 is impeding upon right to life, interpreted as right to health among other rights. 

Arvind Narrain, a graduate of the National Law School of India, who now represents Alternative Law Forum (ALF), is a key lawyer along with Anand Grover and Lawyers’ Collective team, that has  together argued in support of repealing Section 377. The Delhi High Court judgment talks about the right to intimacy, and how it cannot be snatched away, said Arvind. “So we’re not just limiting the discussion to the old argument about what we do in our bedrooms is nobody’s business. We’re moving beyond the bedroom and acknowledging human emotions” said Arvind.

Ashok Row Kavi, a senior LGBT activist, who leads INFOSEM (India Network for Sexual Minorities) and Humsafar Trust, Mumbai, said that his organization (Humsafar Trust) was the first organization to begin a pilot project for MSM funded by the Department of Health Services in 1997. The government took considerable time to understand that unless punitive laws are removed, it will be very difficult to reach out to the MSM, transgender and hijra populations with health and other civil services. Ashok congratulated NACO for bringing in female partners of MSM into the programme as well.

Alexandra Solovieva, Deputy Country Director (Programmes), UNDP India, was the key discussant at the ‘The Road Ahead Section 377’ roundtable. Alexandra said that human rights violations due to sexual orientation or gender identities are unacceptable.

Anand Grover, a noted human rights lawyer said that irrespective of the Supreme Court judgment, we must work towards changing the law. We need a comprehensive generic law on sexual assault to be relevant to all sexual assault cases that happen in India regardless of one’s sexual orientation or gender identity. There are so many people who are undergoing sex reassignment surgeries (SRS) and their status is not clear in terms of whether they can marry, have property rights or adoption rights, etc. We cannot have the population left out of their rights, rightly said Grover.

Arvind Narrain from ALF said that one of the positive outcomes of challenging Section 377 in the court was that it brought diverse LGBT communities together. Also the fight to repeal Section 377 became a broader issue of equality, rights, and non-discrimination engaging larger civil society rather than just remaining limited to LGBT communities.

15 people have filed SLPs against the Delhi High Court judgment in the Supreme Court and 5 people have filed SLPs in support of it. These five supportive SLPs come from public health professionals, law academics, academics from different universities, 19 parents of LGBT children, among others. Arvind appreciated growing support from diverse range of civil society and not just from within the LGBT community, and welcomed more support for the Delhi High Court judgment. 

Aradhana Johri, Additional Secretary, National AIDS Control Organization (NACO), Department of AIDS Control, Government of India, stressed upon normalizing marginalized LGBT communities in the main population so that they not only enjoy health services but all civil and social services without discrimination and with dignity. Policies of different ministries should be harmonized to support not only the decriminalization of the same sex behavior but also to promote other social entitlements and rights of our citizens. NACO is also trying to sensitize police and law enforcers and also the political leaders. Normalization process is important and should go on, rightly said Johri.

The XIX International AIDS Conference (AIDS 2012) that will soon open later this month in US will provide another opportunity for Indian stakeholders to share the learning from Indian struggle on repealing punitive laws with countries that continue to criminalize same sex behaviours driving affected populations underground. AIDS 2012 also comes with an opportunity for India to learn from other countries where LGBT populations enjoy more rights other than a legal right to privacy and equality - such as right to education, employment, marriage, adoption, property, or other social entitlements, with dignity and without discrimination.

The road ahead Section 377 judgment looks long in order to ensure that every citizen enjoys fundamental rights without any discrimination or prejudice. But the struggle is on, and that's very important indeed. LGBT community stands united in the fight to repeal punitive laws and to demand for other social entitlements and rights, and there is a growing sensitivity and support from broader civil society as well. This does give us hope for a better tomorrow, for all, regardless of one's sexual orientation or gender identity.

Bobby Ramakant – CNS