Section 377 - Day 2 Proceedings (on 22.5.08)

[Guest guest]

Dear FORUM,

The matter Naz Foundation (India) Trust v. Government of NCT, Delhi and Others,

Writ Petition (Civil) No. 7455 of 2001 came up before Justice Sikri and Justice

Midha at 3 pm on 22.5.08. The Bench did not sit on 21.5.08, when the matter was

originally scheduled to be heard.

Anand Grover appeared for the petitioners while the respondents were

represented by Garg (Union of India), Ravi Shankar Kumar (JACK), Mr. H.P

Sharma (Mr.B.P Singhal) and Vrinda Grover (Voices against 377).

Day 2 Proceedings

Law reform in England – Wolfenden Committee Report

Resuming the arguments, Anand Grover continued to read extracts from the

Wolfenden Committee report. Iterating its importance, Anand Grover said that

the report sets out a framework for discussion on public policy on consensual

sodomy. More importantly, it addresses all the arguments against

decriminalization of homosexuality including those that may become relevant

considerations for this Court.

Anand Grover highlighted the report’s findings on the following questions

vis-à-vis decriminalization of same sex activity:

(i) whether it will encourage homosexual conduct?

(ii) whether it will have an negative influence on marriage

and family?

(iii) whether it will pave the way for pedophilic acts?

(iv) whether it will hurt pubic sentiments/morality?

Anand Grover pointed out that on the first question, the report found no

evidence that removal of legal sanctions will result in increased homosexual

activity. In other words, the report found no association between law and the

prevalence of homosexuality.

In considering whether legitimizing homosexual conduct would lead to break up of

marriage and families, the report concluded that male homosexuality was as much

a factor for break up of marriages as adultery, fornication and lesbianism.

Therefore, the report found no justification for treating male homosexuality

different from these causes.

Anand Grover added that in the Indian context, criminality associated with same

sex relations compels many gay men to marry. Besides an unhappy marriage, this

may expose the spouse to the risk of HIV.

On the issue of pedophilia, the report categorised men engaging in same sex acts

as - 1) those desiring adult male partners, and, 2) those seeking sexual

contact with underage boys, that is, pedophiles.

Anand Grover emphasized that the report supported the deletion of penalties

against the first category but not men engaging in pedophilia.

Pointing out to what may be a determining factor for this Court; Anand Grover

stressed the report’s observation that the function of the law is to “protect

the weak, the defenseless”. This would cover underage persons, unable to

consent.

In this context, Anand Grover reminded the Court that the petitioner is mindful

that Section 377 is the only recourse for sexual abuse against boys, and is

therefore merely seeking a reading down of the law.

In examining public acceptance of consensual sodomy, Anand Grover pointed out to

the report’s conclusion that moral codes or attitudes cannot be the basis for

penalizing individuals in a free society.

Concurring with the report, Anand Grover argued that is not the role or function

of criminal law to uphold or preserve private morality.

Thereafter, Anand Grover skimmed through legal concepts that the Wolfenden

Committee was faced with:

- What is consent?

- Who is an adult?

- What is private?

Consent: Can be an eager response or a grudging submission. The report found no

reason to differentiate in standards for consent for heterosexual and homosexual

sexual activity.

Adult: Criteria tends to be arbitrary. Still, the report suggested 21 yrs,

which the Legislature in England agreed to. Anand Grover pointed out that the

same was later lowered to 16 yrs, in accordance with decisions of the European

Court.

Private: Need not be strictly spatial. Anand Grover explained that through a

park is a public place, at night and in the dark, it may be seen to create a

zone of privacy.

At this stage, Justice Sikri inquired about reservation(s), that he observed in

sections of the report. Anand Grover admitted that there was dissent, and that

those portions will also be placed before the Court.

Legal status of homosexuality – Trends

Next, Anand Grover presented a list of countries that have decriminalized

homosexual conduct. Updating the Court, he said that Nepal and Fiji have been

added to the list through pronouncements of Court(s). Anand Grover mentioned a

recent decision of the Supreme Court of Nepal directing the Government to repeal

discriminatory provisions against sexuality minorities.

In Fiji too, legal proscriptions against same sex acts between adults were

declared void or unconstitutional by the High Court.

Drawing the Court’s attention to Asian countries, Anand Grover mentioned China ,

Thailand, Cambodia, Indonesia and Iraq among others. He went on to say that some

countries have also enacted law(s) to prohibit discrimination based on sexual

orientation.

Recommendations of the Law Commission of India

Anand Grover then apprised the Court of recommendations of the Law

Commission vis-a-vis Section 377. He presented extracts from the 172nd repot

that suggested a repeal of Section 377 in the context of reforms of rape law(s).

At this stage, Mr. H.P Sharma pressed concerns over child sexual abuse from the

said report. Anand Grover responded by saying that the petitioner’s prayer is

limited to decriminalization of conduct between adults, which, under Indian law,

would mean persons 18 yrs or above.

He clarified that child sex offenders will continue to be prosecuted under the

reinterpretation that he seeks.

Justice Sikri observed that even in Section 375 (definition of rape),

consent of girls below 16 yrs is invalid.

At 4 pm, Anand Grover inquired of the Judges’ whether they would proceed with

the hearing in view of the forthcoming Court vacation.

Ruling out the possibility of a hearing in the week before vacation, Justice

Sikri said that the matter to be considered “part heard” and be listed on 2nd

July 2008 at 2 pm.

At this stage, Mr. H.P Sharma sought the permission to read out a 1993

judgment of the House of Lords that upheld the conviction of gay men

engaging in consensual sado- masochistic acts.

Justice Sikri remarked that a line must be drawn between what may be

considered a crime even in the private domain.

Mr. Sharma opined that if the petitioner succeeds, there will be demands to

repeal Hindu Marriage Act and other similar laws.

At this stage, JACK’s counsel interjected pointing out to a “defects” in NACO’s

affidavit. Ms. Garg admitted that the numbering was a typographic order.

Counsels for JACK and Mr. Singhal once again suggested that the ratio of the

ONGC decision be followed and the issue be remanded to the Government.

Disagreeing with the submission, Justice Sikri said that ONGC matter

involved a dispute between two government departments which then sought judicial

intervention. On the other hand, the present case involves a dispute raised by a

third party ( Naz Foundation India ) in which two departments have taken

different stands.

Garg then clarified that even the Home Ministry’s affidavit was

qualified by the fact that the Section 377 is not invoked against any

person(s).

Vrinda Grover, counsel for Voices against 377, interjected that her client has

filed affidavits to show how the impugned section interferes with individual

freedom and rights.

Justice Sikri then asked if a complaint under Section 377 can be lodged by the

victim alone or by any person.

While Anand Grover answered that anyone can make a complaint, Singhal’

counsel argued otherwise.

Justice Midha inquired about the number of instances when the impugned

section has been applied by the prosecution. Anand Grover clarified that there

were 48 judgments from High Courts (appeals from orders of lower Courts).

In considering ways to clarify the Union of India’s stand, the Justices recorded

that the Court seeks the assistance of a Law Officer with the Government to

represent the Attorney General.

The matter is adjourned to Monday, 2nd July 2008 at 2pm.

Tripti Tandon

Lawyers Collective HIV/AIDS Unit

e-mail: <tripti.tandon@...>