Key Arguments in the Case Against 377

Newsletter Sep – Dec 2008

For the last two months, the newspapers have carried lead stories and opinion pieces on a piece of legislation known as Section 377. Ministers, ministries and government departments -from the Prime Minister to the National Aids Control Organisation (NACO), to the Home and the Health Ministry have all been hectically opining on sexuality and health, morality and Indian-ness, homosexuality and heterosexuality. What’s all the excitement and interest, one may ask. On the one hand, of course, these discussions got a fillip from the vibrant gay pride marches in Kolkata, Delhi, Bangalore and Bombay, but on the other hand, it is actually the final hearings of a case in the Delhi High Court that has stirred up the cauldron.

As we all know, Section 377 of the Indian Penal Code states that "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished...” Though by definition this law applies to all forms of non-procreative sex between any persons, it has been interpreted to apply to homosexual behaviour and is used largely by law enforcement authorities against same sex desiring people. While it makes invisible same sex desiring women through its narrow definition of what constitutes sexual intercourse, it is also used by social institutions, including families, to harass them and compel them into heterosexual marriages. It effectively stigmatises and criminalises all same sex desiring people, including those who identify as lesbian, gay, bisexual and transgender (LGBT), hijra, kothi and queer.

Hence in 2001, Naz Foundation (India) Trust, a Delhi based NGO working on HIV/ AIDS, sexuality and sexual health since 1994 filed a writ petition challenging the Constitutional validity of Section 377. Then on November 22, 2006 Voices Against 377, a coalition of human rights, child rights, women’s rights and LGBT rights groups’ filed an intervention in the court, in support of the Naz Foundation’s stand to read down the act and decriminalise consensual same sex sexual acts between adults, while keeping it in place for use in cases of child sexual abuse until a better law is in place to that effect. While the case is still being heard in the courts, we felt it worthwhile to share with our readers some of the key arguments being made in favour of reading down Section 377.

The Voices intervention uses ‘discrimination’ as its main line of argument -- on the ground that the classification used in applying 377 is not sound and it discriminates against a certain group of people. It has been argued in court by the legal team of Voices Against 377 that this provision subjects male and female homosexuals as well as transgender to repressive, cruel and disparaging treatment that destroys their sense of self-esteem, inflicts grave physical and psychological harm, inhibits their personal growth and prevents them from attaining fulfilment in personal, professional, economic and other spheres of life. Section 377 treats such people as second-class citizens, and makes them vulnerable to continuous exploitation and harassment. Through records of incidents from across the country, as well as personal affidavits, reports and orders, evidence was placed in front of the court to show that the continuance of Section 377 brutalises a vulnerable section of society and produces regimes of surveillance. Consequently, such laws serve to embed illegality within the identity of homosexuals.

Section 377 is a direct violation of the identity, dignity, and freedom of the individual, and that it fostered widespread violence, including rape and torture of LGBT persons, at the hands of the police and society, as in the case of police raid on the office of Bharosa Trust in Lucknow in June 2001, when the police arrested four health care workers and arrested them under Section 377 for possessing nothing but educational material; or the case of two adult lesbian women in Delhi in a relationship wherein the Magistrate refused to let one of the women file a statement that she had left her parental home of her own free will, saying that it appeared prima facie that there were hidden allegations of an offence under Section 377; or the case of a Bangalore based hijra who was raped by ten goondas, and the police, instead of helping her, tortured her in the police station.

The right to dignity has been another central argument in the intervention because sodomy laws reinforce public abhorrence of lesbians and gays, resulting in an erosion of self-esteem and self-worth in various ways. These included self-reflection, reflection of self through family, verbal harassment and dispute, residential zones and migrations, restricted public spaces, restricted movement and gestures, and conflict with law enforcement agencies. “Homosexuals suffer tremendous psychological harm. Fear of discrimination leads to a concealment of true identity in the case of homosexuals it is the tainting of desire, it is the attribution of perversity and shame to spontaneous bodily affection, it is the prohibition of the expression of love, it is the denial of full moral citizenship in society because you are what you are, that impinges on the dignity and self worth of a group”. Another key argument has been the right to privacy, the personal liberty of homosexuals to seek and develop personal relationships of an intimate character.

Global trends with respect to laws relating to homosexuality including the Yogyakarta Principles, the decision of the South African Constitutional Court, the Fijian High Court, the High Court of Hong Kong, the European Court of Human Rights, the Nepalese Supreme Court, and the UN Human Rights Committee have also been cited to support the argument that moral disapproval could not be adequate rationale to keep Section 377 on the statute book. “If it is a law which impinges on the dignity of an individual, not in a nebulous sense, but affecting the core of the identity of a person, and morality is insufficient reason in a case like this where you are criminalising a category and affecting a person in all aspects of their lives. After all, sexual orientation and gender identity are part of the core of the identity of LGBT persons. You cannot take this away.” Drawing from a wider canvas, it was argued that in many parts of India, men identify themselves by their caste. Women often identify by gender. For some, religious identity is paramount. When you are enumerating identity, a heterosexual person may not consider sexual orientation as important, but for a homosexual, sexual identity may be paramount. Sexual orientation is often the first thing that governs a person’s life. Hence, “if the court did not declare its relief limiting the scope of Section 377, it would cast a doubt on whether LGBT persons enjoyed ‘full moral citizenship’ of this country.”

Underscoring the need for appropriate directions where persons of the LGBT community are alleged to have committed offences other than Section 377, it was argued that law enforcement officials policing against obscene acts in the public, etc. proceed against LGBT persons not as they would in respect to heterosexuals but under Section 377 as well. This amounts to discrimination inasmuch as an offence under Section 377 is non-bailable and is punishable with a sentence up to life imprisonment. In contrast, a heterosexual person booked for the same offence (under Section 294) of the IPC would face a relatively lighter sentence of three months imprisonment and is a bailable offence.

The interpretation with respect to Section 377 urged by Voices Against 377 is in keeping with contemporary understanding of sexual orientation and gender identity. "It is consistent with Indian constitutional values ; it is consistent with international human rights standards; it is consistent with the developments in this field of the law worldwide as reflected from legislative changes and decisions of the superior courts in countries across the world", it was said in court. "At its root, this case is about the Emancipation of a large segment of our people. All of them Indian, all of them citizens. The Constitution of India in one of the great emancipatory charters, lifting as it does from the status of wretchedness and subordination –- communities, castes, tribes and women –- to full citizenship. This case is about an invisible minority of Indians that seek to unlock the assured liberties enshrined in the Constitution, but denied to them in an aspect of life that matters most to them: their own identity; their own sexuality; their own self. "

Hence to blot, to taint, to stigmatize and to criminalize an individual for no fault of his or hers, is manifestly unjust. To be condemned to lifelong criminality shreds the fabric of our Constitution. For the male homosexual in particular and by its expanded application to lesbians and transgender as well, Section 377 has worked to silence the promise and spirit of the Constitution of India that recognises, protects and celebrates diversity.