The Challenge to 377 IPC: Lessons from the road to success http://www.lawyerscollective.org/magazine/august2009/cover-story
When on the 2nd of July 2009, the Delhi High Court pronounced the verdict with the words "We declare that Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution" and ecstatic joy broke out first inside the courtroom and then outside, it not only shed one of the last yokes of colonialism, but raised a lot of questions about the reasons for the success in the case. A number of people asked me how we got it absolutely right in framing the petition. For the High Court pronounced the order exactly in terms of prayer framed by us in the Lawyers Collective. We have to remind ourselves that when the petition was filed in 2001, nearly ten years ago now, there was only skepticism about our possible success. The judgment in fact underscored the foresight of the Lawyers Collective team in not only framing the petition but also the long term planning that had gone into it. But one has to admit that the question about the reasons for the success cannot be answered easily, as, after the event, hindsight always colours one's response. But answer we must. And we have to attempt to answer that as honestly as possible so that lessons drawn can be applied elsewhere. This has become especially important now when there are people writing about this case, who are distorting history. Identifying the injustice and the issue There is so much injustice in the world. How does one identify the issue that one has to can take up? It is not really easy at all. However we were lucky in the Lawyers Collective as we were heavily involved in the HIV issues by the turn of the millennium. We had scored a big success in the case of the MX v XY, where Justice Tipnis, speaking for the Bench of the Bombay High court, had held that an HIV positive person cannot be denied recruitment in a State employment if s/he has the necessary qualifications, is functionally fit to do the job and does not pose a significant risk of transmitting HIV. The court also decided that an HIV positive person could file a petition and prosecute it after suppressing her/his identity through a "suppression of identity" order. That was in 1997. By 2000 we had consolidated that important victory in other cases too and were extending them to compassionate employment. By that time we were getting clients from the lesbian, gay, bi-sexual and transgender (LGBT) communities. Their problems pointed to section 377 IPC as the source of all evil, as it were. There was indeed a felt need in the community to get rid of the section. We had to do it. That was the basis of our taking up the issue. However there was hardly a favourable environment for the change. But change was necessary. The British enacted Section 377 in 1869 as a part of the Indian Penal Code to punish persons indulging in "unnatural sex". It provided as follows: "377. Unnatural Offences - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation - Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section." Later the section in number, letter and spirit was exported to all countries in the British Commonwealth and the US. Over the years it had been held by the Indian Supreme Court that it applied to penile-non-vaginal sex and over the last few years it also extended to "sexual perversity". Consent and age was immaterial. Though it was textually facially neutral as it applied to homosexuals and heterosexuals alike, in practice the police targeted homosexuals. In particular S. 377 was applied against non-consensual adult acts with minors. Framing the challenge There are two ways in which one can get rid of a provision of law. The first is the legislative route. Basically this means approaching Parliament to amend the law. From our reading of the situation at that time, it was clear that the government, and for that matter, even individual Members of Parliament (MPs) were not ready for it. Therefore we could not opt for that route. The only other route was to challenge the constitutional validity of the section. We did not have much of a choice. Challenging the constitutional validity was the only way. Moreover from what has happening around the world the court route seemed more favourable. In fact later when I met a prominent Minister in the Government during that period, who also happens to be a prominent lawyer, he agreed with our strategy that the court route was the only way. He opined categorically that "our MPs will not do it." A crucial challenge was to frame the petition. We had good precedents to follow. At one level (amendment by Parliament) there was the change initiated by the Wolfeden Committee of 1967 in Britain to go by. At the other level (court route) we had the decisions of various courts, particularly the South African case of the Constitutional Court decided in 1998 (The National Coalition of Gay and Lesbian Equality v. Minister of Justice) to guide us. Both routes, the legislative and the court, had opted for decriminalizing consensual sex between adults in private. That apart, from the nature of prosecutions in India it was clear that section was being used in cases of non-consensual sex cases in adults or with minors who were otherwise legally not capacitated to consent. Therefore it was clear that we would not go for striking down the whole section but seek a declaration only in a limited manner that is for a declaration that the criminalization of consensual sex between adults in private was unconstitutional. But we must remind ourselves that we can do that because we have a written constitution, which allows the Supreme Court and the High Courts to strike down laws on the ground that they violate Fundamental Rights. Invoking Fundamental Rights The other problem was what Fundamental Rights of the Constitution we should invoke. A lot is being now said about how Article 15 has been invoked and how the judgment is really a good precedent on that. It is necessary to say that it was also well thought out. Both Sharan Parmar, who had drafted the petition under my guidance, and I, had innumerable discussions on the issue. We decided that we would challenge 377 on all Fundamental Rights, which were available to us under the Indian Constitution, even if on some there was no precedent. We also wanted to set new precedents in interpreting our Constitution on some other issues. There was none in the case of Article 15 for us to be guided by. But we thought the Toonen case decided by the Human Rights Committee was a good guide. Thus we tried to be creative in some measure and went in for creative interpretation. Therefore we sought to interpret the prohibited ground of "sex" against discrimination contained in Article 15 to include sexual orientation. I had tried to expand the scope of the ground of "sex" in Article 15 in other cases but failed. The other issue was on the concept of personality, which we wanted interpreted in Article 19 in our Constitution (freedoms including speech, association and assembly). Unfortunately the Delhi High Court never went into the latter issue. On other issues we decided to follow the well-trodden path. Thus we invoked the Fundamental Right to life and liberty under Article 21 of the Indian Constitution (which has been interpreted to also contain the Fundamental Right to privacy, dignity and health) and the Fundamental Right to equality and non-discrimination contained in Article 14 of our Constitution. It was on all these points that the Lawyers Collective on behalf of the Petitioner, Naz Foundation India, ultimately argued the matter. It is now surprising to hear that human rights issues were not raised by us. To say the least, this amounts to falsification of history. Which Court to file the Petition in? This was a delicate issue. Two fundamental things guided us on this. Firstly, we knew that the environment at that time was not very friendly towards gay people. So we decided not to file the matter in the Supreme Court because if the Supreme Court dismissed our matter we would be stuck with its decision for a long time. Secondly, we were under the impression (wrongly at the time) that Petition, which was filed by AIDS Bhed Bhav Andolan on the issue of distribution of condoms, was pending in the Delhi High Court. That meant that we could not file the petition in another High Court. For if we filed it in another High Court, the Government would move an application in the Supreme Court and get the petition transferred to the Supreme Court. Thus we decided to file it in the Delhi High Court. Who would be the petitioners? I was under the impression that in the era of Public Interest Litigations (PILs) it would be easy to get people to become Petitioners in an important cause of decriminalizing adult consensual sex in private. But that was not to be. The only person in India who was ready to take the plunge was the celebrated gay activist, Ashok Rao Kavi. However, Ashok was from Mumbai and we wanted a person from Delhi. Ultimately we asked Anjali Gopalan of Naz Foundation India who agreed to be the Petitioner. Naz Foundation India was ideal in one way as it had a MSM program and was working on HIV. What I did not anticipate was that the fact that it was not a self-identified gay group would become a problem later. There was a lot of bickering later on about Naz Foundation India being the Petitioner. Some of the groups were simply not happy about Naz Foundation India filing the Petition though they were not ready to file the Petition themselves. It is any body's guess that if we had waited for the perfect Petitioner we would not have been able to file the petition at all in this decade. Facing the brick bats The moment we filed the Petition in the Delhi High Court, we had to face criticism, first from the AIDS Bhed Bhav Andolan, who were irate at us filing the petition. I tried to explain to them that while their petition was only about condoms being not made available in prisons ours was a comprehensive challenge to Section 377. All I got us were choicest of abuses in choicest Punjabi. I let that pass because of my respect for Siddarth Gautam, the founder of AIDS Bhed Bhav Andolan, who was not only very bright but the humblest of human beings. There was no parochialism or sectarianism in him. He wanted to include whoever wanted to help in the fight unlike the present day activists who have, sadly, become exclusive in their approach. Secondly, some groups from the community objected to filing the petition without consulting them. That was painful. We tried to explain that it was only the initial filing and the community would be involved in the key decision-making. Fortunately over a period of time we were able to fulfill that promise and at every turn we had community consultations to decide how to move ahead. The third was facing the challenge from the opposition. JACK (Joint Action Council Kannur), the group who intervened in the Petition to oppose it, filed a Bar Council complaint against me arguing that we were misusing the judicial process as not only had we written about the issue in our magazine, but also organized a workshop where judges attended and the issue had been discussed. They pointed to the NHRC workshop, which was attended by its Chair, Justice JS Verma, the retired Chief Justice of India. The matter took a toll on me and it was dismissed after about two years and I came out stronger. The lows in the journey Like all journeys it has had its trials and tribulations and its highs and lows. The first major low was the Delhi High Court dismissing the petition on technical grounds, that Naz did not have the locus standi to file a petition, as it was not directly affected. Worse than that was the fact that the Review got dismissed in less than 5 minutes. We felt very bad that day. The other low was the divisions, which started emerging within the diverse groups who supported the petition. Some of the groups never took kindly to Naz Foundation India taking up the case in the first place, as it was not a gay group but an HIV support group. This became pronounced later on in the case. On the intellectual front, we faced criticism on two issues. One, that the petition should not have raised the privacy issue at all, as that was anti-thetical to the practice of gay men for whom, according to argument, privacy had no meaning. I relied on my good sense and the precedent of the South African Constitutional Court, which rejected precisely this argument. The other was the criticism by some that the petition was too heavily based on HIV. Again I realized that HIV was a key issue and a weak point in the Government armoury and we should exploit it. That became apparent when the National AIDS Control Organization (NACO) filed its affidavit, supporting our stand on HIV and decriminalization, and contradicting the stand of the Home Ministry. Any lawyer worth his salt will tell you never to give up an argument, more so on ideological grounds. Grounds in law are like tools. You should use them they way you want to. I decided to stick to that argument. Another low has been the deepening divisions in the movement. We welcomed the Voices Against 377 group joining the fight primarily because all who want to fight should join it. However it became clear that the camaraderie and communication that existed has given way to scoring points about who did things better. This does not augur well for the movement. ... and the highs First, we in the team were prepared for the long haul. Issues like these are not for fly by night operators, of whom there are a plenty. Secondly we were able to train the team in the Collective to go for a win. Of course you don't win every case and therefore lawyers must be trained for both, to bear a loss as also as for adulation in case of a win. But you must fight only to win. The team also worked very well on the arguments and we were able to produce high quality work. The other great thing was that throughout the journey we were able consult the community on the course to take at each turn, e.g. when we lost in the High Court, when the Supreme decided in our favor, and just before the Court took up the case finally. On all occasions we consulted a wide section of the community. Again when the Supreme Court directed the Delhi High Court to decide the matter on merits was a great turning point. Yet another was when NACO filed an affidavit in our favor. Then again when, the signature campaign to support the case of decriminalization, though risky, came through. Well-known authors like Amartya Sen and Vikram Seth signed on. It was at that time I realized that tide in the public mind was turning in our favor. The greatest high is undoubtedly the final judgment. More so because it accepted all of our arguments, which dealt with, especially on ground of "sex" interpreting it to include sexual orientation. The impact of the judgment The Court has the broken the shackles of criminalization gripping LGBT groups, who have attained a new freedom. A new era has dawned in India. As the judgment underscores, it is the dignity and inclusion that we have captured. It has lessons for other sectors beyond the LGBT community. India will be richer by this judgment. It will also make sure that we are able to deliver HIV services without fear. It will also have repercussions in all parts of the world, particularly the Commonwealth countries, which have replicated 377 in their criminal statutes. The battle has been won. However, the war still remains to be won. Some parties have approached the Supreme Court. The Supreme refused to stay the order and judgment of the Supreme Court. That battle has still to be won. The ultimate war is for minorities to be treated without discrimination on all counts. That is a very long war. Only those who passionately believe in the just cause that we are fighting will stay on for the long haul. What does the present portend for the future... When we first started nobody was prepared to take up the case. Now all that has changed, though not completely. The case gave impetus to the movement for rights of sexual minorities. That is a very good thing. However, there is a tendency in some quarters to say that gay issues are not a matter where non-gays have a right to enter. The latest manifestation of this is the gay pride march in Mumbai where "non-LGBT" groups have been excluded from any role in the organizing of the march. That is unfortunate. Firstly, if that is what one has to go by it is debatable whether this case would have been taken at all up even in this decade. Moreover though there are a lot of gay activists now, and that is partly because of the mobilization in the case, there is still reluctance to be out fully and go to court in one's own name. Secondly fundamentally it is wrong to think that others who are equally concerned with these issues should not be part of the struggle. Ironically some of the people who are arguing in this manner were opposed to the fight against 377 in the first place. The divisions in the movement are becoming sharper. Some persons for egotistical reasons want to belittle the work by one group and only highlighting the work done by the other. This again does not augur well for the movement. The key issue is not to start the debate about who did the work. That may be good for making funding applications. But it does not help the struggle. As the battle to win the rights sharpens it is important to be united in the battlefront and draw in everybody in an inclusive manner. Surprisingly after winning in the High Court there is a lot of pessimism being shown by persons. Not surprisingly they are the same persons who never thought we would win. They don't seem to have faith in the cause. It needs to be stressed that when we go to battle consciously we must believe that our cause is just and that we will be victorious in the end. That our cause is just is the biggest weapon we have. Pessimism after a great battle won only shows lack of faith. That is the biggest lesson of this long drawn out case. Anand Grover Director, Lawyers Collective HIV/AIDS Unit --~--~---------~--~----~------------~-------~--~----~ You received this message because you are subscribed to the Google Groups "lgbtdiscuss" group. To post to this group, send email to [email protected] To unsubscribe from this group, send email to [email protected] For more options, visit this group at http://groups.google.com/group/lgbtdiscuss?hl=en-GB -~----------~----~----~----~------~----~------~--~---
