A battle for sexual rights

The campaign for sexual rights gets a boost with the Supreme Court taking up an appeal against a High Court order dismissing a petition challenging Section 377 of the Indian Penal Code.

in New Delhi

IN the recently released movie "My Brother Nikhil", the protagonist, Nikhil, is a homosexual man suffering from HIV/AIDS [human immunodeficiency virus/Acquired Immune Deficiency Syndrome]. He is detained by the government under the Goa Public Health Act, 1985, which empowers the State government to isolate persons living with HIV/AIDS by confining them in wards and institutions for extended periods. Nikhil's sister Anu (played by Juhi Chawla) and partner Nigel, along with his lawyer, launch a campaign to free him. One evening, after campaigning all over the city for his release, Nigel comes home only to find his house ransacked and "faggot" painted across the entrance to his house.

Incidents of harassment of the homosexual community and social discrimination in India remain widespread despite years of campaigning by sexuality rights groups in the country. The biggest hurdle faced by the campaign to fight discrimination based on sexual orientation in India is Section 377 of the Indian Penal Code (IPC), which criminalises "unnatural sex". The law, a remnant of Victorian morality, was made in 1860, when any sexual activity that was not meant for procreation was considered a sin.

In 2001, the Naz Foundation, a non-governmental organisation (NGO) involved in HIV/AIDS prevention, filed a petition in the Delhi High Court (Naz Foundation vs Government of NCT, Delhi and others) asking for Section 377 to be read down, in order to decriminalise private consensual sexual activity. The Naz petition argues that Section 377, by prohibiting private, consensual sex, violates the right to privacy and that the law discriminates on the basis of sexual orientation. It says that the law is a threat to the right to life and right to health of homosexuals in India because it perpetuates social stigma and police abuse. The petition points out that the law prevents HIV/AIDS prevention work among the homosexual community, thereby rendering homosexuals increasingly vulnerable to contracting the disease.

In September 2004, a two-Judge Bench of the Delhi High Court, consisting of Chief Justice B.C. Patel and Justice Badar Durrez Ahmed, dismissed the petition on the grounds that there was no cause of action in the petition since there was no prosecution pending against the petitioner. The court said that an academic challenge to the constitutionality of a legislative provision cannot be entertained.

The petitioners filed a review petition before the High Court pointing out that the homosexual community in India, on account of Section 377, is a socially disadvantaged group which is unable to approach the court directly for fear of being identified and subject to harassment by the police. Said Vikram Doctor, a journalist based in Mumbai: "There is an organised blackmail ring in Mumbai that targets homosexuals, in which members of the police are also involved. When senior police officials were approached, they wanted a complaint to be filed. But the problem is that there is no guarantee that the person filing the complaint will not be harassed by the police because of Section 377."

The High Court dismissed the review petition as well, upon which the petitioners filed a special leave petition (SLP) before the Supreme Court on the limited question of whether the High Court could dismiss the petition on the grounds that there was no cause of action. The SLP was heard by Justices Y.K. Sabharwal and P.P. Naolekar. The court, while issuing notice to the Central government to be represented before it in the next hearing, said that the petition did not deal with an academic question and that this was a public interest issue that was being debated all over the world. The Judges observed that the High Court could refuse to entertain such an issue only on the grounds that it was merely academic and that there was no personal injury to any party.

The last response from the government to the petition filed in the court was the National Democratic Alliance (NDA) government's submissions in September 2003. The Ministry of Law and Justice had said then that Section 377 should remain because it was a tool that could be used by the government to interfere in the private sphere in "the interest of public safety and the protection of health and morals". The government claimed that Section 377 was used in cases of assault and deleting the section could "open the floodgates of delinquent behaviour". The government said that Section 377 was needed to deal with cases of child sexual abuse.

Though the NDA government filed this response in court, it was contradictory to the policies being followed through the National AIDS Control Organisation (NACO), which continue to encourage diverse sexual practices within a safe-sex, HIV/AIDS prevention framework. The NDA government's response drew angry protests from a number of organisations.

Brinda Karat, who was then general secretary of the All India Democratic Women's Association (AIDWA), wrote a letter to Arun Jaitley, the then Minister for Law and Justice, objecting to the arguments advanced by the government justifying the continuation of Section 377. In the letter she said that AIDWA maintained that the government did not have the locus standi to interfere in the private sexual activity of two consenting adults, regardless of its interpretation of what was natural or unnatural sexual behaviour. She pointed out that if one were to accept the government's standpoint, then many existing pieces of legislation concerning women's rights and Dalit rights would not have been enacted since there are many sections of society that consider wife-beating or dowry taking to be consistent with "tradition and culture", just as they consider untouchability to be the "natural order" of society. Addressing the government's argument that Section 377 needs to be retained because it is also used to deal with cases of child sexual abuse and is therefore necessary, Brinda Karat said that there was nothing to prevent the government from enacting a comprehensive law against child sexual abuse, which should include a clause that criminalised non-consensual same-sex relations.

The Supreme Court's observations in the Naz petition have evoked a cautiously optimistic response from those campaigning for the repeal of the law. Said Geeta Kumana from the Aanchal Trust, a support group for lesbian, bisexual and transgender women: "We have to wait for the actual judgment. It has taken years of lobbying by lesbian, gay, bisexual and transgender rights groups all over India that has resulted in this development."

Activists increasingly believe that the campaign against Section 377 must look beyond the law to efforts at raising public consciousness on issues relating to the rights of sexual minorities. Said Rakesh Shukla from Voices Against 377, a coalition of human rights, child rights, women's rights and sexual rights groups: "The petition is important but not enough. We need to continue to lobby with political parties, the legal fraternity, the police and mental health professionals and to raise awareness among the public." The government is expected to file its response in the next few hearings. It remains to be seen if the United Progressive Alliance government's response will be different from that of its predecessor.