Report : Discussion on Delhi HC Judgment

[Guest guest]

Dear All,

The Humsafar Trust arranged a discussion on the Delhi High Court Judgment on

Section 377 on Friday 3rd July 2009 at its Vakola Drop In Center in Mumbai.

 

Ms. Kalpana Gaekwad from Lawyers Collective and has been actively involved in

the court proceedings conducted the discussion and took questions from audiences

during the 2 hour long session. Here is a brief report covering important issues

discussed during the evening that was attended by more 200 community people.

Kalpana explained the law and how Section 377 criminalizes any form of sex that

does not lead of procreation. Hence it leads of criminalization of same sex

behavior affecting the basic human rights of the sexual minorities in India.

Section 377 was introduced in 1860 and is a British legacy. She explained that

section 377 does not mention the words ‘same sex’. It only mentions that sex

not leading to procreation is unnatural and hence illegal.

This archaic law thus violates articles 14, 15,19 and 21 of the Constitution of

India denying individuals their basic right to exist and being respected as

equal citizens of the country.

In 2001 NAZ foundation India, an NGO based in Delhi challenged 377 in Delhi High

Court on the ground that as the homosexual communities remained invisible it was

extremely difficult to reach out to them and provide services on for HIV and

AIDS which threatens millions of lives of MSM and Transgender in the country.

The court case was fought essentially on health grounds and health being a vital

human right. Some more supportive groups joined the crusade in the course of the

court case. A long struggle ensued and finally after 8 long years of sustained

efforts Delhi High court has supported amending Section 377 on the ground that

it violates article 14,15 and 21. The court now holds that if 2 people of sound

mind and above the age of 18 have sex by consent in a private

place they will not be guilty of an illegal act. Article 19, the right to

freedom of expression however is still a grey area.

Currently an astrologer has filed a petition in the Supreme Court  and the Chief

Justice has issued notices of Government of India and Naz India Foundation to

file their responses by 20th of July.

The community has a reason to be hopeful as the opposition seems rather weak but

a lot would depend on the response of the community. In the winter session of

parliament if there is a specific discussion on this and an amendment is made in

the law then we have nothing to worry.

Then no religious group can go against us though the opposition and homophobia

will not go away over night but legally the right of the

homosexual community as a legal identity would be in place..

What this means for the LGBT community

The Law is currently applicable in the state of Delhi. However it has set a

precedent for other states and If one is booked under 377 there is a chance that

the person will be acquitted on grounds of the Delhi High court judgment even if

the person is in another state however this will ultimately depend on the judge

for that High Court who can refuse to accept the verdict of the Delhi High Court

and have their own judgment.

If the Supreme Court upholds the verdict of the Delhi High Court it will  be

become applicable all over the country.

A lot of other sections of IPC have still not been amended and a person can

still be arrested on grounds of public nuisance, obscenity etc though this is

not relevant only to homosexuals, but heterosexuals as well. Another example is

prostitution, where you can be charged under ITPA or Mumbai Police Act.

There is nothing in the judgment that allows for marriage. It only means that

you can have sex in private if both parties are consensual and adults of sound

mind. The marriage laws in the country have not been touched. Hence, LGBT’s

still cannot legally marry, adopt and share property rights or insurance with

their partners. This judgment has not accorded any special rights for the

community.

 

However, if there is workplace discrimination or an individual faces violence on

the basis of his sexual orientation he or she will be able to access legal

recourse.

Questions from the audience

1. the police need proof to put me in prison if I am caught having sex in a

toilet?

Answer: Unless there is proof, they cannot register you; which is why all these

years there have been only 130 cases in the country under section 377 which

requires the police to provide proof of penetration. You might be booked for

public nuisance though, regardless of section 377.

 

2. In Mumbai and in other places we have private gay parties. If in a farmhouse

or outing there is a raid what can we do?

Answer: Depends on the facts of the case. Is there any drugs or prostitution

involved, is the music a disturbance? If alcohol is found at the party venue

than do people carry their permits, has the party crossed the limit of the time

permitted to close down?

IF you are having a private party, and you have been booked for it being a

‘homo’ party, you have the right to have the law defend you.

If you have been in line with the law on all other counts, you cannot be booked

for this. The police might scare you but don’t be scared if you haven’t done

anything wrong. Be aware of your rights of arrest which includes the case being

written and filed, allowing you to call your lawyer/ support system, reading the

FIR and having you sign it, the police being in uniform and nametag, telling you

under what section you have been booked so that you know why, and being

presented to a magistrate within 24 hours. Tell the magistrate if you have been

denied any of these rights in addition to demanding proof for any false

accusations.

3. Can a gay couple from a country where their wedding is legal adopt an Indian

child?

Answer : Adoption in our country is under personal law. There are various rules

of adoption, they might have cleared some. However there are no laws that

specify that gay couples from India or any other country can adopt children from

India.

 

4. Some people don't want article 377 dropped as it is the only current law

against pedophilia. What is your opinion?

Answer - We don't want the law scrapped. We only want it read down not to

include sexual acts conducted in privacy between consenting adults. We want

consenting homosexuality removed from its purview. In fact we have been

continuously requesting that laws around child sexual abuse and rape be

strengthened but sexual orientation of individuals cannot be denied.

5. Â Do we have a lobby of legislators supporting and recognizing us as a

minority? How are they supporting the law ministry?

Answer - Since 2001, there is an advocacy program going on from various NGOs

across the country. From the beginning the target of the advocacy program has

been the judiciary, so that the lawyers and judges are sensitized. When at the

second level, we met legislators and conversed with them, over time they were no

longer hostile but were clear they would not come out and support us in public.

Hence our stand was to bring a High Court decision and now the Supreme Court

verdict in our favour first.

 

Now that the first hurdle has been removed, we are already organizing

consultations with communities in the country to advocate with state and central

level ministries to sensitize the government. The time for ministry level

advocacy has come, so that if the motion comes into parliament it should not be

opposed. In case of voting in the parliament even non voting or abstinence is

better than voting against it. As communities we need to work pro actively and

now is the time to start work.

 

6. What is the counter to the police if you are caught under some other act, say

if you are bagged outside a toilet?

Answer : Ask for what you are being booked. Use your rights. Normally police

just say they are booking you,they never say under what and you pay up to avoid

jail. The point is fight for your rights. Ask why – under what section am I

being booked under? Can I call a lawyer or my parents? Is this a bailable

offence? Call humsafar or any support helpline and seek support from their

lawyer who will be willing to help you.

However it is normally seen that in a situation where a person is being troubled

by the police, we are scared inside, for we have been scared of 377 which is 10

years in jail. We don’t be scared and pay up unnecessarily. Sit there and ask

what you have done wrong.

Also DON’T plead guilty. Don’t be scared you will be put in jail. Remove

fear from inside you. Just stand firm for your rights.

 

7. If they catch me and I say ‘what is wrong about being a homosexual’ and

they beat me?

Answer: Just admitting that you are a homosexual is not an offence but If you

are caught having sex in a public place like a railway platform toilet than you

will be harassed as the point is you were caught in a public place. If it is in

private than don’t admit to it just yet as Bombay high court has not passed

the verdict. Seek legal  advice.

 

Today we are talking about rights. We cannot be scared by those who used to

scare us using section 377 as tool for harassment of innocents. Today they might

try and use other sections to scare you further.

With the bribe money we used to give them out of fear of section 377, they might

find other ways to book us. So let’s be extra careful. If you have rights, you

also have responsibilities. So let’s not give the police an opportunity. If

they catch us anyway without reason, we can fight. Be alert and be secure.

 

Towards the end of the session Vivek Anand, Chief Executive, Humsafar Trust 

expressed gratitude for Anjali Gopalan and her team at Naz India Foundation,

Anand Grover and his team at Lawyers Collective, all the lawyers, activists and

community based groups in the country who worked tirelessly in the last eight

years and this day possible for the community  and said that our journey begins

NOW and it was time to work on our next steps.

 

TG  Urmi offered vote of thanks to Kalpana Gaekwad who made an effort to come

and spend time with the community discussing a judgment that may change our

lives forever.

This report has been compiled by Ms. Devika Rege – Advocacy Unit, The Humsafar

Trust

 

Chief Executive Officer

HST - Centre for Excellence

3rd Floor, Transit Building

Old Vakola BMC Market

Nehru Road, Santacruz East

Mumbai, 400055

e-mail: <avivekr@...>