The Supreme Court verdict which upheld Section 377, penalising those who engage in homosexual acts, oral sex etc has left the LGBT community and its supporters in a state of shock and despair. Activists have called this a ‘black day’ in the history of India’s judiciary and compared it to the emergency.
In the judgement that was put on the SC’s website, the court has noted that the respondents, including the Naz foundation had failed to show the prevalence of discriminatory practices against homosexuals.
The judgement reads,
“The writ petition filed by respondent No.1 was singularly laconic inasmuch as except giving brief detail of the work being done by it for HIV prevention targeting MSM community, it miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them.” (italicise please)
However Anjali Gopalan of Naz foundation says that where this is concerned, “I don’t really understand what more they wanted. We had furnished a number of affidavits showcasing these practices.”
Anand Grover, part of the Lawyer’s Collective and counsel for Naz Foundation says, that, “The court completely overlooked our arguments on the same. We had filed a number affidavits in the pleadings, all sorts of studies to showcase the discriminatory practices, but it was all overlooked.”
He points out that even the Delhi High Court judgement had taken note of the kind of examples they had given to point out the discrimination against homosexuals.
For example, the Delhi HC 2009 judgement refers to one Lucknow incident of 2002 where members who were working with a local NGO were arrested and charged with Section 377. The NGO was working with MSM (Men who have sex with men) and in the area of HIV/AIDS prevention. The 2009 judgement reads,
“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) workingin 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.” (In italics please)
Another incident referred to in the 2009 judgement is tha 'Bangalore incident, 2004' where a transgendered person was gangraped, tortured and later abused at the police station.
“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 gangrape, 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.". It should be noted that these are the few cases that are go reported and therefore come to the notice of the courts.
According to Grover, the primary question placed before the Supreme Court was around Article 21 and Article 14 of the Indian constitution. “Article 21 deals with privacy. The state cannot intrude into the personal lives of citizens. With such a judgement where even oral sex between consenting adults is criminalised, the question of consent is thrown out of the window,” he says.
Grover also points out that one of the arguments they made was to show that the law is never used against heterosexuals. “It’s not as if heterosexual couples don’t engage in oral or anal sex. But the law is never used against them. With section 377, private sexual acts are penalised. The law is only applied against the LGBT community and it is discriminatory. They (the court) completely overlooked these arguments,” he agrues.
The other point where constitutional validity of Section 377 was challenged was under Article 14 which says that all citizens are equal before the law. The Article reads,
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”
Grover points out that Section 377 seeks to punish those who engage in ‘carnal intercourse against the order of nature.’ “It is based on no solid rational. The language of the section is completely vague and arbitrary. Again the arguments around Article 14 and 15 of the Constitution were ignored,” he says.
The Court however while acknowledging that vagueness could render a law unconstitutional, it wouldn’t be so in this particular case. The judgement notes,
“The vagueness and arbitrariness go to the root of a provision and may render it unconstitutional, making its implementation a matter of unfettered discretion. This is especially so in case of penal statues. However while analyzing a provision the vagaries of language must be borne in mind and prior application of the law must be considered.”
It then gives examples of two prior case judgements where it was noted that vagueness of law itself does not mean that the law cannot be applied.
The other point that the SC judgement referred to was there aren’t enough LGBT people in India nor have too many people being prosecuted under section 377. The judgement reads ,
“While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution.”
According to Grover, this is a rather insensitive observation on part of the top court. He says, “It is shocking that the SC made this observation. It’s job is to expand fundamental rights of the citizens not to reduce them.”
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Updated Date: Dec 13, 2013 07:09:54 IST