Wednesday, July 1, 2009

The long road of the S. 377 case

The long road of the S।377 case

Vikram Doctor, Mumbai, 15/4/2009

On 7th November 2008 Chief Justice A.P.Shah of the Delhi High Court said a few short words that marked a huge step in the struggle to change Section 377 of the Indian Penal Code, which is used to criminalize homosexuality. The Honourable Chief Justice’s words were: “The Bench reserves judgment.” This may not sound particularly significant or dramatic, but it marked a major turning point in an eight year long battle simply to bring the case on S.377 to the point where a sufficiently senior Bench could consider the case and deliver a verdict.

Note that we are not even talking about what the verdict will be – the Bench’s words simply indicated that the time for arguing about the case in court was over and now it was up to the judges to write their verdict. That can itself take months, and at the time of writing this we still don’t know what the verdict will be. But regardless of the outcome, just getting to that point was a major step. When, almost a decade back, queer rights groups in India first started debating a challenge to the law we knew it would not be easy.

A change in the law seemed unlikely in a country where homosexuality was still seen as embarrassing or taboo. And experiences from around the world have shown that a change in the law can be a long drawn out and difficult prospect. There were essentially two ways in which change could be pursued – through the Legislature or the Judiciary. The first was what activists in the UK had done, fighting a battle in the House of Commons to get the law changed. This, we figured, was almost impossible to do in India. The track record of the Lok Sabha in passing laws of any kind, leave alone controversial ones, is so low, and the level of public support among elected representatives so non-existent, that this route might have taken us forever.

(A variation on the Legislative route is to push the measure through during a time of big Constitutional change, as part of general progressive reforms. This is what South Africa did at the time of the end of apartheid, and is what Nepal is doing now. But this sort of constititutional opportunity is rare, and not likely to come up in a country like India with a well-established constitution. The Law Commission, which was appointed to review laws in India to make them more effective, has recommended scrapping S.377, but nothing much has come of this).

The other route was through the Judiciary, as has been done in many countries, like the US, Australia, and Ireland. Opponents of queer rights attack this route as examples of ‘activist judges’ unfairly imposing laws on majority opinion in their countries. But this ignores one of the essential functions of the Judiciary, which is to review all laws of the country and see if they conform to the spirit of the Constitution that a country is founded on, regardless of what passing public opinion might feel. In doing so the Judiciary guards the basics of the Constitution against meddling by temporary political majorities, and protects minorities from being bullied by the majority. In extending their countries commitment to non-discrimination to sexual minorities, the judges in these countries had been performing their essential function.

This was obviously the route to follow in India, but again there were different tactics. One would have been to go with an actual case of a queer person harmed by the lawyer. This is what queer activists did in the US case of Lawrence vs. Texas, and it is a powerful strategy because it puts a face on the struggle, making clear the individual human harm caused by this law. But the problem would be finding such a case in India. This is not because, as opponents to changing the law have argued, the law is not applied in India. There is ample evidence of its use over the years (see Alok Gupta’s Section 377 and the Dignity of Indian Homosexuals, in Economic and Political Weekly, for a summary of the most prominent cases). But the people affected are, not surprisingly, afraid to fight for fear of public shame and reprisals under the law, so we knew it would be hard finding such a proper case. A second option was to base our case on general grounds of human rights.

This was the approach taken in Australia and Ireland, where individuals argued that their basic human rights were being curtailed by the law. This was more promising, but again we wondered if it would be effective. The track record of Indian courts protecting individual human rights is mixed, and this was a controversial area. There was also a more practical alternative. HIV/AIDs had become a huge problem and the need to tackle it strongly was widely accepted. One of the highest risk communities were men who had sex with men (MSM), and the government of India had tacitly accepted this, allowing groups like the Humsafar Trust to set up progammes tackling MSM. There was a contradiction here though, because these groups were engaged in giving out condoms that could be used in anal sex – which was illegal under S.377, so by extension giving out condoms was illegal too, for abetting the breaking of the law.

The police raid on the office of a NGO, Naz International, in Lucknow, confirmed this risk. This issue, activists decided, was a more practical one to on which to base a challenge to S.377.This approach had even been tried before, by a group called the AIDS Bedbhav Virodhi Andolan (ABVA), which had filed a case in Delhi against the law. But while this was pathbreaking, ABVA had not been able to follow up this case, and at some point it was tossed out by the court. What activists now proposed to do was taken up the same point, with a tightly argued petition and a sustained campaign to follow it through in the court. But which court?

The most dramatic option was, obviously, to go straight to the top, to the Supreme Court of India. But the problem with that if the petition did badly there, there was no appeal – we would have to start from scratch. Whereas if we first filed in a High Court we could effectively test out the case there – and then if we lost we could always appeal to the Supreme Court. The Delhi High Court seemed the best place to do this in, and we duly opted to file there. The petition was drafted by Lawyer’s Collective, a legal rights NGO with a strong record in human rights activism, and was filed as Public Interest Litigation (PILs) by Naz India, a widely respected Delhi based NGO involved in HIV/AIDS work. And then nothing happened.

This was no surprise, given the slow progress of most cases in Indian courts. But then one day, after sitting on it for quite a bit, the Delhi High Court suddenly woke up. An unsympathetic Bench decided it didn't want to deal with this issue, so they threw it out on a technicality. They said that since the case did not involve anyone who had actually suffered harm under 377 it was a pointless case and Naz India had no locus standi. This was a shock, and it had two possible responses. We could appeal the decision to the Supreme Court and ask them to look at the petition itself. Or we could ask the Supreme Court to look at just the technical issue that the Delhi High Court used, and to rule on whether this was right. Since we still wanted to test out the actual case before going to the Supreme Court, we opted for the option two.

We were on strong grounds here. By throwing out our petition the Delhi High Court was not just attacking queer rights, but human rights in general, since it is a principle of human rights that they are so important that anyone can file a case for their protection. By saying that only directly affected people could file cases, the Delhi High Court was attacking the concept of a PIL itself. The Supreme Court agreed with us. They said that Naz India certainly had the right to file the case and that this was an important matter that the Delhi High Court had to listen to us. So we won there, but only on a narrow legal point and not really a gay rights point. We did not have then, and still do not have, any idea what the Supreme Court feels about queer rights.

But at least our case was back on track. It was back with the Delhi High Court and perhaps the passage of time had been a good thing. The Court had possibly become more supportive of progressive issues, with perhaps the best sign being the appointment as Chief Justice of Justice A.P.Shah, known for his strong support of human rights matters. It still took some time (this has not been a process designed for people expecting quick, dramatic developments!). It finally seemed to get going around May last year, but just before the Court’s term ended. This was a problem since we knew that after the Court resumed the judges assignments would change, so the judges who was assigned the case in May, Justices Sikri and Mirdha, would either be moved off the case, in which case we’d have to start from scratch, or would have to set up a special court once a week to hear it, in which case it would take forever.

The first is what happened, but with what we hope was a good twist for us – the Bench that was finally ready to hear the case in full was one with an excellent track record in human rights matters: Chief Justice A.P.Shah himself, and Justice Muralidharan. We have no idea how this will affect their verdict, but we were sure that our case would be given an attentive hearing. This is what took place over October and into the first week of November. It took so long because, in the eight years it has taken to reach this place, the case has become more complicated with more parties becoming involved. In support of the petition Naz India has now been joined by a petition filed by a Delhi based group Voices Against 377.

This has taken up the pure human rights argument that, when the process started eight years ago, was felt unlikely to work by itself. But in eight years things have changed a lot, there is more widespread support of queer rights in different sections of Indian society, and Voices felt the time was right to support Naz India’s HIV/AIDS based argument with one based on pure human rights arguments. Two parties have joined the case to oppose queer rights, along with the government which was de facto opposed to our petition in its capacity as defender of the Indian Penal Code. The two new parties are Mr.B.P.Singhal, a conservative activist, and Joint Action Committee, Kannur, an activist group that is opposed to HIV/AIDS organizing, and which claims to be opposing our petition because it is supported by HIV/IDS organizations like Naz India.

It is this multiplicity of interested parties, each with the right to argue its point, that lead to the time it took for the case to get heard. It is hard to say, from an outsider’s perspective, how the arguments went. But it certainly seemed that the Bench gave a fair hearing to the arguments put forth by our advocates, Anand Grover of Lawyer’s Collective for Naz India, and Shyam Divan for Voices Against 377. (Reports on the proceedings can be found at

In the opposing arguments what was somewhat unexpected was the vehemence with which the government argued its case. Members of the government, like Health Minister Shri Ambumani Ramadoss, and the Prime Minister, Shri Manmohan Singh himself, had said the law needed to change, but unfortunately it was the intransigent opinions of the Home and Law Ministries, which supported the law, that prevailed. But finally it was over.

On 7th November Chief Justice A.P.Shah ended the arguments by reserving the case for the final judgment, and we are still waiting for it. Once it comes it will probably be appealed to the Supreme Court – definitely by the opposing parties if the verdict goes in our favour. So the case is far from over, and it looks like the Supreme Court will finally get to consider it, and what happens there absolutely no one can say.

Whatever the verdict though, either now in the Delhi High Court or ultimately in the Supreme Court, the years that this process has taken have been crucial in giving a focus and rallying point for the queer movement in India. If today we seem significantly closer towards the goal of achieving real queer rights in India, the 377 case, with all its twists, turns and longeurs, has been a key route in reaching there.

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