This was from 2008, the same year where the Ministry of Home Affairs opposed decriminalisation, which position has been restated today by ASG P.P.Malhotra without attempting to clarify if that is still the MHA’s position (the media is now reporting that the MHA is stating it has no position, which is a significant change from 2008).

It is still unclear if Malhotra was acting on his own, or if there is some confusion within the MHA on this issue, which is why its important to focus on the one part of the government, the Ministry of Health (and through them the PM, who was speaking here in a Health context) has no changed its position of support to us. Even when the Minister himself, Ghulam Nabi Azad, recently appeared to be have his own views on this, he was quickly forced to clarify his stand in favour of the basic Ministry of Health position of supporting our case.

IMPORTANT: PM’s speech + Minister’s remarks on S.377 Just after the success of National Pride, a potentially big new development. The Prime Minister has made a speech where he calls for support for minority communities affected by HIV/AIDS, including homosexuals, and says that legal barriers that prevent services reaching them should go. And at the same function Minister of State Oscar Fernandes finally said it openly: “Section 377 needs to go. This is something we really need to move forward on.”

For context, please note this mail I’d posted on QMC earlier about the UNAIDS Commission on the Impact of HIV in Asia chaired by Dr.C.Rangarajan. As expected the report is very positive on issues like the need for legal change. I had posted the background and relevant sections earlier on this list. If you want to read the full report here’s the link:

• A basic story on the report: http://www.unaids.org/en/KnowledgeCentre/Resources/FeatureStories/archive/2008/20080326_asia_commission.asp
• Full report: http://data.unaids.org/pub/Report/2008/20080326_report_commission_aids_en.pdf
• Fact sheets (1): http://data.unaids.org/pub/FactSheet/2008/20080326_fs_asiacommission_part1_en.pdf
• Fact sheets (1): http://data.unaids.org/pub/FactSheet/2008/20080326_fs_asiacommission_part2_en.pdf

Thanks to Dr.Rangarajan’s position as one of the prime minister’s main advisors he was able to arrange a function where the report was presented to the PM. This happened yesterday and I’d come to Delhi for that (Pride was a bonus!). Anand Grover was there and Ashok was supposed to be there too, but couldn’t come. It was all very high power, high security, protocol, etc, but worth it because what was said was excellent. Dr.Rangarajan gave an excellent speech outlining the commission’s recommendations, repeatedly mentioning the need to remove legal issues that complicate HIV/AIDS outreach with Men who have Sex with Men. Then the PM spoke, and as is characteristic with him, he was low key and restrained. But the speech was longer than I expected and it seemed quite heartfelt, especially towards the end. He did not specifically promise to remove 377, but he spoke of the need to remove stigmas and legal barriers facing all groups and, yes, he said the word ‘homosexual’, rather endearingly stumbling a bit so it came across as “homossekssuals”, but he said it!

Here is the link to the speech, the relevant portions and since its so important I will paste the full speech anyway below:

http://www.pmindia.nic.in/lspeech.asp?id=691

“The HIV/AIDS epidemic has brought into focus many of our social prejudices. The overwhelming number of cases are due to transmission through the sexual route. Strategies for tackling it require more inclusive and less judgmental social approaches to questions of public health and personal hygiene. “This must begin by addressing the issue of the social stigma that attaches to those who carry the AIDS virus. I do believe that growing consciousness about HIV/AIDS is forcing us to address these issues.

“The government should play a leading role in this. We should work to remove legislative barriers that hinder access of high-risk groups to services. There is a proposal for a law which would penalize anyone discriminating against an AIDS infected person from access to employment, property or services. This should be given serious consideration. The fact that many of the vulnerable social groups, be they sex workers or homosexuals or drug users, face great social prejudice has made the task of identifying AIDS victims and treating them very difficult.”

“If we have to win this fight against HIV/AIDS we have to create a more tolerant social environment. One need not condone socially unacceptable or medically inadvisable sexual practices in seeking a more tolerant approach to the problem. It is in the interests of the entire society that everyone afflicted by AIDS wins the battle against it. They deserve and have the right to live lives of dignity.”

If Dr.Singh was circumspect, the speaker who followed him, Oscar Fernandes, the minister of state (independent charge) for Labour and Employment, was not. He got up and said it (from my notes):

“It is time for politicians to come together to repeal Section 377 of the Indian Penal Code. Many other countries have repealed the law and it is now time India moves forward on this.”
For most people in the audience – institutions like UNAIDS, the National AIDS Control Organisation, bureaucrats, a few lawyers and journalists – this was electrifying. We were finally hearing a senior member of the government, in the presence of the prime minister, saying that S.377 needs to go! After the function was over and we were having tea we descended on the Minister, who admitted he has wondered about saying it, but after half an hour of discussion with advisors, he decided to go ahead.

It was amazing, but its also true that its questionable how much this means in reality. This government seems to be on its last legs so its not clear what it could do, even if it wanted to – its one thing making statements to sympathisers, quite another to do something practical. Nor is it clear that taking it to politicians is the best solution, since the chances are that politics could kill any positive moves, whereas the courts may be more willing to listen to the principles involved. And the Ministry of Home Affairs, which is opposing decriminalisation is much less progressive – we realised this at an interaction during a workshop on the report where a MHA representative was polite, but not too receptive (but she has promised to meet with Ashok to talk on this more).

Nonetheless, it is still something. It is an indication of how far things are coming, and how support is now becoming the default position, rather than homophobia bred of ignorance. We can help this by publicising this more, so please everyone, get out there and start selling this story. I know there might be queer story fatigue after Sunday, but we should use Sunday as a springboard for more in depth stories of which this changed attitude on the part of the government can be a part (Lesley, Outlook cover?)

Here’s the PM’s full speech:
PM’s remarks on the release of the Report of the Commission on AIDS in Asia June 30, 2008 New Delhi

I am indeed very pleased to launch the Report of the Commission on AIDS in Asia. I compliment my friend, Dr. C. Rangarajan, and his colleagues on the Commission for producing an extremely important report. It is a well-researched document that puts together information and analysis that can help us evolve strategies for reversing the HIV/AIDS epidemic in the countries of Asia.

It is heartening to note that the report validates the basic strategic framework that has been adopted in India. It reiterates and reconfirms our understanding of the epidemic. It shows that the measures that we have adopted in India to reverse the pandemic have a sound basis.

The report has underlined clearly the importance of a public health approach to the problem if we want sustainable gains. The public health approach places emphasis on strategies that focus on vulnerable population groups, among whom the virus is primarily lodged, and goes to the root of the problem with the objective of arresting its transmission.

It is a matter of some satisfaction that the situation in India is not as alarming as it was portrayed to be some years ago. While it used to be claimed that India may have up to 5 million persons affected by HIV, more recent estimates suggest that the number could be between 2 to 3 million, mainly in the States of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu.

The HIV/AIDS epidemic has brought into focus many of our social prejudices. The overwhelming number of cases are due to transmission through the sexual route. Strategies for tackling it require more inclusive and less judgmental social approaches to questions of public health and personal hygiene.

This must begin by addressing the issue of the social stigma that attaches to those who carry the AIDS virus. I do believe that growing consciousness about HIV/AIDS is forcing us to address these issues.

The government should play a leading role in this. We should work to remove legislative barriers that hinder access of high-risk groups to services. There is a proposal for a law which would penalize anyone discriminating against an AIDS infected person from access to employment, property or services. This should be given serious consideration.

The fact that many of the vulnerable social groups, be they sex workers or homosexuals or drug users, face great social prejudice has made the task of identifying AIDS victims and treating them very difficult.

If we have to win this fight against HIV/AIDS we have to create a more tolerant social environment. One need not condone socially unacceptable or medically inadvisable sexual practices in seeking a more tolerant approach to the problem. It is in the interests of the entire society that everyone afflicted by AIDS wins the battle against it. They deserve and have the right to live lives of dignity.

The target intervention projects that have been taken up with a focus on vulnerable populations are useful and necessary. This should be accompanied by more broad based educational programmes. Modern sex education at the appropriate school stages is of great value.

The report has highlighted the importance of political engagement and leadership as a key part of national responses to HIV and AIDS. Law enforcement agencies and the judiciary need to be co-opted to support progressive policies that address the problem.

The importance of community and civil society involvement at all stages of policy has been emphasized. It is only with their help that that public awareness regarding healthy sexual practices, including the use of condoms, can be widely propagated and social prejudices ended.

We need to understand the vulnerabilities that force some to resort to risky behaviour patterns and give them access to reliable and relevant information and basic services. We must give them adequate support to make their own choices in full awareness and  responsibility. We need to encourage behaviour change and mould social attitudes, while shedding our inhibitions regarding matters related to sexual choices.

Our Government is fully committed to supporting the strategies and work being done by the National AIDS Control Organisation. It is heartening to see the strides that have been made in the last two years in scaling up access to services keeping in view the balance between prevention and treatment. I compliment the Union Health Ministry and NACO for the leadership they have shown in tackling this very difficult problem and containing the disease.

I appeal to all medical practitioners, hospitals and blood banks across the country to adopt zero risk and best practice methods for blood collection and blood transfusion. Every citizen must have complete confidence in our blood safety practices. I am therefore, happy that an initiative has been taken to establish a national blood transfusion authority.

The problem of HIV/AIDS, and other pandemics like SARS and Avian Flu, demonstrate clearly the wisdom of that ancient Indian saying, “Vasudhaiva Kutumbakam”. That “THE WHOLE WORLD IS ONE FAMILY”. Like all phenomenon in nature, diseases do not respect national boundaries. Hence societal response to pandemics cannot be limited to national response alone.

Of course, every country and every government must have a strategy to deal with such threats to human safety and health. We need preventive and curative strategies at the national and local level. However, such national effort must be part of a wider regional and international effort. I am therefore, happy to see that my friend Dr. Rangaranjan chaired this commission which takes a wider view of the problem at the Asian level.

We live in an increasingly integrated world. There are few problems today that humankind faces which can be solved effectively within national boundaries by individual governments. Be it the problem of pandemics, be it the problem of food security, be it the problem of rising energy prices, be it the problem of water scarcity and water utilization, be it the problem of climate change and global warming, be it the problem of terrorism, be it the problem of drug peddling and arms proliferation, be it the threat of the proliferation of weapons of mass destruction – all of them require effective cooperative action at the global level.

Each and every challenge that we face has transnational dimensions and transnational implications. The world in which national governments have to deal with the challenges they face on their own, on the premise of national sovereignty and national self-interest, no longer exists. We live in the era of global interdependence.

I am encouraged by the fact that the global response to HIV/AIDS has been constructive and has yielded positive results. I hope this will show us the way forward in dealing with other similar challenges. I hope this report adds to the available wisdom on the subject and will help us in shaping a more effective response at home. I compliment the authors of this report.

Thank you.

The judges asked a lot of questions today – they themselves, at the end, indicate that they will ask fewer questions the next day. It is easy, while reading this, to feel disheartened by the tone they take, but I think the way to look at it is that the judges are feeling their way in this case and are indicating what areas they find interesting.

The judges say that they hope that they will get answers to their question – well-researched and rigorous arguments. In the next few hearing dates we will see if our opponents can provide these.

Naz Foundation Case- Final Arguments – Supreme Court  – 22 February 2012

Mr.Sharan, representing the Delhi Commission for the Protection of Child Rights continued his arguments before the Supreme Court bench of Justices Singhvi and Mukopadhyay.

Mr.Sharan submitted a list of propositions to the court. In these propositions he said, “I will show how each of the findings of the High Court are against the law and that the reasoning of the High Court will not withstand the scrutiny of the law that has been held by Your Lordships”.

Mr.Sharan went on to read from the Delhi High Court’s judgment in the Naz case. He read from para 98 (which referred to Art 14 of the Constitution) , para 99 (refers to Art 15 of the Constitution) . He said that public morality was important in framing the law as it is included as an exception in Articles 19 and 25(1)

Mr.Sharan argued that there were a series of cases that held that the right to privacy was not an absolute right, and did not confer immunity to crimes committed by consenting adults in private.

Mr.Sharan argues that the High Court’s findings on Article 14 were erroneous as section 377 did not create a class and applied to men and women if they indulged in carnal intercourse against the order of nature. He said that what was criminalized was the act and not the person himself.

Mr.Sharan argued that if the High Court decision was taken to its logical conclusion, any provision could be declared to be violative of Art 14, for instance, dowry seekers could claim they are being discriminated against and in an extreme case murderers could claim that are being discriminated against.

Mr.Sharan said that Art 15 prohibited discrimination on the basis of gender and not on the basis of sexual orientation – He referred to DD Basu’s commentary on the Constitution.

Mr.Sharan said that the High Court relied on foreign decisions, articles and foreign law to hold that 377 was not valid. He said that there was a vast cultural difference when it came to Indian society . “I have grave doubts about transplanting Western jurisprudence into our country”, he said.

The Bench, referring to the journalists seated behind said, “There are some youngsters behind taking notes of your arguments. Please give a copy to them. Sometimes their reporting results in comedy”.

Mr.Sharan argued that the Delhi High Court relied heavily on a South African case but the South African situation was different since their constitution expressly prohibited discrimination based on sexual orientation.

Mr.Sharan then read from paras 6, 7 and 8 of the Delhi High Court judgment
The Bench said, “We would like to more thoroughly appreciate – does this kind of activity lead to HIV/AIDS. Is there a scoping study conducted by the petitioner, or the state?”

The judges wanted to know the term `procreation’ was linked to this discussion. Mr. Sharan said that there was no relevance whatsoever.

The Bench said that in order to constitute an offence, you needed a complainant and an accused. He asked if there was a third party who witnessed the offence , then it would it still be considered `in private’.

The Bench said, “We would like you to delve into this matter further. There are other sections like obscenity – the provision that makes sexual acts done in public an offence. Would this be in violation of Arts 14, 19 and 21. The verdict in this decision will have an impact on other provisions of the IPC. Keep in mind the entire gamut of laws that would be impacted.

The Bench then referred to Art 51A (e), the fundamental duty to renounce practices that are derogatory to the dignity of women. He asked of there were any acts that were being discussed here that would impact the dignity of women. Mr.Sharan read from para 9 of the judgment (legislative object of 377) and from para 24 of the judgment

Mr.Sharan read from paras 15 and 16 of the Delhi High Court judgment (referred to the NACO affidavit filed in the High Court. Mr Sharan stressed that homosexuals were a high risk group.

The judges asked how this was relevant to 377. Mr Sharan said that this was not related and that the only reasons to hold 377 ultra vires would be if it was not enacted by a competent authority or if the law violated Part III of the Constitution (fundamental rights).

Mr.Sharan read from para 25 of the judgment (Maneka Gandhi decision). He said that the High Court had not correctly applied this case

Mr.Sharan read para 26 of the judgment (right to dignity) and paras 29 to 39, which discuss the right to privacy extensively. He said that the High Court had relied on a large number of US decisions although there was voluminous case law in India. He said that the circumstances in the case of Gobind v State of MP were coloured by completely different circumstances where the case related to surveillance. Mr Sharan read para 40 of the judgment (link between privacy and dignity).

Mr.Sharan gave the court a copy of the non discrimination clause in the South African constitution (Art 9). He emphasized that the term `sexual orientation’ was specifically mentioned. “That is why it is really dangerous to rely on foreign judgments when our courts have covered this field and laid down the law”.

Mr.Sharan then read para 42 of the High Court judgment (sexuality and identity), and paras 43 and 44 (reference to the Yogyakarta Principles). He continued reading paras 45-47 (discussion on privacy).

Mr.Sharan said, “The reasoning of the High Court is fallacious. With due respect, the Court has reposed confidence in foreign authors about homosexuality. He said that the law had stood the test of time and stood for more than 150 years

The Bench, referring to the definition of `sexual orientation’ said that the meaning itself did not constitute and offence.

Mr.Sharan said that 377 did not penalize a section of society and only penalized a particular act. He referred to para 48 of the High Court judgment (which refers to the right to live with dignity and the right to privacy), and said that there was absolutely no basis for the high court to talk about personhood, or dignity of homosexuals.

Mr.Sharan said that the findings of the High Court were not supported by materials or reasoning and asked the court how the right to live with dignity and the right to privacy could include the right to have carnal intercourse against the order of nature.
The Bench asked, “Is the word `sex’ used in section 377?”

Mr.Sharan replied, “No, its never been used”. He said that the term used is `sexual offences’ for rape and `unnatural offences’ in 377
The Bench said, “This issue has cropped up and will crop us again- whether a provision of the Constitution or a law enacted by a legislature can be questioned by an organization or a group of people?” He asked if these views would represent the 120 million people living in India.

The Bench said that there may be cases registered where this type of law would violate the right to privacy . He said that the Preamble of the Constitution did mention the term `dignity’.

“It is a regular phenomenon that a parallel debate goes on – one inside and one outside the court and sometimes it happens that our system falls prey to this alternative debate”, said The Bench.
“That’s why the lawyers in this case should not talk the media”, said Mr.Sharan
“We are not concerned with lawyers talking to the media. It is the fundamental right to speech. But this parallel debate should not influence our proceedings” , The Bench said.
The Bench said, “Does a person have a fundamental right to do an act which is against the order of nature?”
The Bench said, “Have you got figures of offences under section 377 post independence? You have cited six cases in a given fact situation. The High Court judgment so far does not indicate how many such cases were instituted resulting in harassment to a particular section of society”.

The Bench said, “What happens if one section is challenged today and others followed?”. Section 304 B IPC (dealing with dowry death) could be challenged and it could be argued that the demand for dowry is my private right, and that the state cannot prosecute me. Would it be open to an organization to say that section 304B is ultra vires the constitution? ”

One more example could be offences related to obscenity in public spaces. In other countries there is a practice in football and cricket matches of people going nude. Can youngsters in our country say that it is their basic right to remain naked? “Or their natural right”, joked The Bench.

The judges enquired in what circumstances a law could be challenged and said that this verdict would impact other legislations

“Does a person have a fundamental right to act against the order of nature?”, said The Bench. Does Article 21 empower someone to act against the order of nature? E.g. with animals. No one can say this. Which act is against the order of nature is also individual.

The judges said that they would like to be enlightened by both sides on both these questions. “This judgment is an illuminating one. There are a large number of authors , material related to international law used”.

The Bench said, “We were wondering Mr. Sharan, how many countries are there in the world?” He said that the judgment quoted 25 experts who framed the Yogyakarta Principles. “What about the other countries?”, he asked. “There are views expressed by various individuals. Some are researchers who arrive at analytical opinions. Somebody has their own view which is absolutely personal. Can this be relied upon in the judgment?”, he asked.. “All these years we have Prof so and so from Harvard, Yale, Oxford..we are yet to find Prof Upendra Baxi, or constitutional law and jurisprudence from this country”.

“What was the situation in our own country before the British took over administration? “, asked the Bench.

The Bench said, “What about other laws? Hindu Law, Mohammedan law, other religious law which governs sexual relations between persons.”

The Bench said, “We are asking all these questions to enlighten us , that’s all”
“There are Christian, Muslim and Hindu organisations who are represented here and will speak about this”, said Mr Sharan

“We want a more research based submission”, said the Bench.
The Bench referred to Art 13 of the Constitution, and said that the definition of law included custom etc.

Mr.Sharan said that where the law was not codified religious law of marriage, inheritance would apply

Mr.Sharan said that the conclusions of the High Court were not supported by any reasoning. The court had not shown how 377 was an impediment to the right to full personhood or took away somebody’s dignity. He said that the right to privacy does not include a right to commit a crime in private.

The Bench said, “Legislation decides what is crime. What is crime? For example, there may be a prohibition against marrying two persons in one religion. How can a person say I have a fundamental right to have two wives?”

“The law talks of unnatural offence. One may this is not at all unnatural. Can one say I have a fundamental right to commit an offence”?, said The Bench.
“Or that it includes the right to privacy”, said Mr Sharan

“We are not going on morals, we are going on the Constitution” , said the judges “The Constitution itself says public morality in Articles 19, 25″ said Mr Sharan
“It also talks of dignity of others” said the Bench.

Mr.Sharan said, “The concept of dignity. How does it govern the field of carnal intercourse against the order of nature? It appears that the Hon’ble High Court has missed the tree for the woods”.

The judges asked, “Employees of an organisation can also file a case when there are service rules prohibiting a second marriage. My wife does not complain and consents. I could say – no, the time has come to recognize the right to privacy. You can marry even three wives if you can afford it. Why impose a restriction? Who is the police? What is society? Why should they object to this right? Why should the law punish me? It is my private matter ”

Mr.Sharan said, “Such incidents will multiply and this will be deleterious to morals”
The judges asked Mr Sharan to clarify. “Orderly conduct will be impeded. Among two people, if one agrees to be murdered, there will be no offence”, said Mr Sharan.
“Many patients want their families to do this” said the Bench.

“Why should it not be treated as a part of the right to privacy?”, said the Bench.

“If such a provision is there that treats it as a misconduct, why should it not be struck down or read down?”, asked the judges

The Bench said, “If I can keep 5 cars, why can’t I keep five wives?”

Mr Sharan said, “I can keep 5 women, not 5 wives as it is against the laws of marriage”

The Bench said, “There are communities that believe we should maintain purity over race and so marriage is held within families, in violation of the Hindu Marriage Act. Doctors may say that it is bad. They might say that we have the belief.” There is a new concept, we hear about it- exchange of wives – they say that this is private and consensual and why do you make it an offence”

“It is not an offence today”, said Mr.Sharan

“If they make it offence, then what happens? The worst extreme must be considered to test the vires of a statute”, said the judges

The Bench said , “The statute does not look into a class of persons , a group- race, class, colour, religion etc. Therefore under 377 everyone has been equally treated irrespective of sex, class, creed , religion. How will Articles 14 and 15 be attracted”, he asked.

“We don’t have to remind you all. These questions could be misleading. These questions are for both the sides”, said the Bench.

“I have been in courts for a long time to know the import. You are trying to elicit the best performance from the lawyers”, said Mr Sharan. “You have more than 75 years of experience”, he said.

“Don’t make us that old Mr.Sharan”, joked the Bench.

“The section could certainly be construed as a violation of the right to dignity” said, the Bench.

“The offence would be against dignity”, said Mr.Sharan.

“The order of nature would keep changing, not with reference to nature at all but to the `nature of humans’ said the Bench.

“This has not changed for the last 10,000 years”, said Mr.Sharan

“Society has undergone changes. Bigamy was not an offence under the old Hindu law”, said the Bench.

“The nature of procreation and sexual urges have not changed”, said Mr.Sharan
“It has changed”, said the Bench The judges asked Mr.Sharan about artificial egg, sperm, cloning artificial limbs, stem cell theory and other scientific developments
“Science only harnesses what is natural”, said Mr.Sharan

“What about artificial blood” asked the Bench. “We are pointing out that science is bringing out fast changes”

The Bench said , “Some animals are created without using sperm”

“Forty years ago very few people donated organs in India. Now it is common in many cases”, said the Bench.

“The petitioner is perhaps trying to foresee what is to come and represent a cause of a part of society who they call homosexuals or gays”, said the judges. “Why should you interfere by supporting 377?”, they asked Mr Sharan

Mr.Sharan said, “It is for the legislature to decide. The only scope for judicial action is if 377 violates fundamental rights or the body creating it does not have a power to do so. There is no cause for interference as far as 377 is concerned” He argued that the right to life and liberty can be curtailed by law which prescribes procedure. He argued that the procedure in this case was the Code of Criminal Procedure (CrPC)and that it had not been argued that the CrPC does not lay down a fair and reasonable procedure

Mr,Sharan argued that the right to privacy did not extend to committing a crime in private and that the Supreme Court had held that privacy was not a fundamental right and was subject to reasonable restrictions

The judges talked about the meaning of dignity. “Dignity is a sense of pride in oneself, and `worthy of respect’”, said the Bench.

The judges said that they were keen to hear the other parties and asked Mr Sharan to finish by the end of the day. They said they would restrict their queries for the next day.

Mr.Sharan then read from Paras 94 and 98 of the High Court judgment (section 377 as facially neutral) and para 104 (the declaration)

Mr.Sharan then referred to the A.K. Gopalan case that dealt with preventive detention. The case talks of how the right to life and liberty can be taken away by procedure established by law. Mr Sharan referred to the Maneka Gandhi case which refers to the interrelation between Articles 14, 19 and 21. “The entire discussion in this case centred around procedure- it has been held that procedure prescribed by law which curtails the right to life and liberty must be fair and reasonable and follow principles of natural justice.., the fundamental rights must be directly infringed”, he said. Mr Sharan said that section 377 did not directly breach Art 21.

Mr.Sharan will continue to argue on the next day of hearings. The matter has been listed for tomorrow (Thursday)

The case was first taken up on Monday and did not come up on Tuesday because some other matters, which were presumably seen as more urgent, were listed first. I think we’re realizing that this is how the case will be heard. This bench has decided they will hear it, and they confirmed that today. But they will hear it along with other matters, which on any given day might have more priority, so the 377 case will usually be heard towards the end of the day.

In other words, this case is going to be stretched over quite a bit. With so many petitioners against us, all of whom will get their hour or two in court, and then the petitioners on our side, we are looking at a lot of court hours. So the case is on, but lets not expect anything soon, leave alone a verdict.

This may seem excruciating, and there will be plenty of uncomfortable moments in the early part when our opponents will have centre stage. We will be hearing a lot of stuff that is illogical, insulting, demeaning or just confused. But we will get our own turn, and, as one of our opponents lawyers rather aggrievedly pointed out today, all the big names are on our side. So the arguments will start sounding better in time.

We must also be careful not to start reading too much into what the judges say or speculating on what they are thinking. It is really hard not to do so, since I think speculating on the minds of judges is what a large part of the legal profession obsesses about, and this is passed on to us. But I feel there is little point doing this because (a) once the Bench is fixed there is nothing we can do about it, and (b) it undermines what judges are there to do, which is hear with an open mind and decide as arguments are presented to them.

And in today’s arguments I think you can see this. This Bench is not pretending to be very knowledgeable about homosexuality, but they are willing to discuss it, and this may involve discussing it in very basic ways that seem uncomfortable and naïve to many of us, but this is what they are meant to do. This Bench seems to me to be feeling their way through what they are realizing is a complex and loaded issue, but which they have decided to go ahead with.

OK, enough bhashan from me and I won’t be doing this on a regular basis. I’ll try and post basic summaries, as I get them from sources, of what happened in the day’s arguments. But I just want to make a general caution about reading too much into what is being said, or over-reacting to any particular argument. This is going to be a long drawn out process, with lots of ups and downs, and we should just be prepared for that.

Notes for Supreme Court hearings on appeals against Naz Foundation case on 15.02.12. The Bench consists of Justices Singhvi and Mukhopadhyay

The day started with counsel for Voices Against 377 raising the preliminary argument that private individuals could not challenge the High Court’s declaration, but the Bench said they would heart these arguments later. The petitioners against the judgment are clearly going to be heard first.

Praveen Agarwal, the counsel for Suresh Koushal continued with his arguments. From what I gather, these simply involved quoting from large parts of the judgment and going over basic details, including the fact that the Ministries of Health and Home Affairs has given opposing affidavits in the Delhi High Court, with Health saying that retaining 377 comes in the way of their efforts (for HIV/AIDS education).

There was an interesting moment where the Bench asked Mr. Agarwal on what his client did to which he replied that he was a social spirited citizen and had retired and that he earned money through astrology. The Bench replied that this was a broad term and that almost all human beings were social workers. He asked the lawyer if his client predicted the future of people and said that usually astrologers did not know their own fate. He remarked that there was nothing certain in life except that one has to go back from where one comes. (I am getting the feeling that the Bench is not overly impressed with Mr.Koushal’s profession!)

Mr.Aggarwal continued going over all the reasons why the Delhi High Court decided that the homosexuality should not be criminalized between consenting adults, including references to judgments that touch on privacy issues, HIV/AIDS issues, WHO and APA Guidelines showing almost unanimous medical and psychiatric opinion that homosexuality was not a mental disease, the 172nd Law Commission Report which recommended the deletion of s.377. He further stated that the HC while dealing with Article 14 of the Constitution concluded that there was no nexus between section 377 and the purpose of the section, which was to protect the morals of children and women.

Mr Agarwal continued in this vein for a while, and judging from this basic report I am wondering which side he is appearing for since he seems to be restating all the arguments in our favour. But finally he came to his point which seems essentially to say that all this is very well, but the rights conferred under Art 21 which included the right to privacy could be curtailed for the general public good. His basic point seemed to be that we should be discussing what were the reasonable restrictions to be allowed on this issue, and whether s.377 fell under them. Not very surprisingly perhaps the Bench finally asked Mr.Agarwal to take some more time to frame his arguments properly.

The Bench decided around here to get a bit more proactive in asking for information. It asked the petitioner – `what is 377? Does it take care of homosexuality?’ What are the subjects therein? In one case it could be construed as an offence, in others it may not. Is it justified to strike it down? The Bench asked Mr Agarwal to read out the section and explain which portion of the law was read down as ultra vires.

The Bench then decided to call on another lawyer for the petitioners. I am told that the best known among them is Mr Sharan, the counsel for the Delhi Child Welfare Committee to argue. This is, in a way, not a surprise, since the Delhi Child Welfare Committee comes from one of our most determined and long term opponents and was always one of the more serious petitions.

The Bench asked Mr Sharan whether carnal intercourse could be considered unnatural and if a person who showed that his acts were natural could escape from being prosecuted under the section. When the Bench noted that in 1860 (when the Indian Penal Code was formulated) medical science did not talk of homosexuality, Mr Sharan replied that it was a discovery, not an invention, and that this was like asking a young boy how he survived before oxygen was discovered.

The Bench asked Mr. Sharan what the meaning of “against the order of nature” was. Mr Sharan replied that nature recognised only carnal intercourse between man and woman and did not recognize carnal intercourse between men and men, women and women, and with animals. The Bench wanted to know why animals were covered under this section and Mr Sharan replied that bestiality, homosexuality and lesbianism were all considered unnatural.

The Bench, again seeming to trying to get to the basics in the case, asked Mr Sharan what the meaning of homosexuality was. Mr. Sharan replied that it was sex between two men. The Bench asked if carnal referred to something specific, and wanted case law on this. Mr. Sharan said that as far as the opinion of society was concerned there was no doubt that homosexuality was against nature. The Bench asked `what is carnal intercourse? What is unnatural?’

The Bench wanted to know whether carnal intercourse had anything to do with procreation and non-procreation. Mr Sharan replied that it would include both procreation and non procreation. Mr.Sharan was going to refer to the dictionary meaning of carnal but the Bench said they wanted the legal meaning. The Bench pointed out that there were activities even amongst gays that might or might not attract 377. (I am not entirely sure if what is meant here is non-consensual activity, which would still be covered by 377, or if a more general point is being made that allowing consensual same-sex activities does not mean allowing absolutely any kind of such activities). The Bench noted that there was no discussion in the HC on what constitutes carnal intercourse.

The Bench continued to press Mr Sharan on the exact meaning of the HC verdict, and what relief it gave. The Bench said that they would properly analyse 377 and decide in the modern context to what extent it can be treated as against the constitution. The Bench asked for more information on 377 (they are surely going to get it during these hearings!)

The Bench then asked Mr Sharan to counsel his colleagues and then argue. Does this again show some doubt about the quality of the petitioners arguments? Mr Sharan then noted, in what seems a rather aggrieved way, that this was one of the rare instances where all the legal luminaries were on the other side. He said that he faced more interference from his side than the other side. What can this mean? Is he also annoyed by some of the people he’s with! Perhaps to cheer him up, the Bench said that Mr Sharan’s side were the legal luminaries of the future, and pointed him back to the case by saying that it wanted to hear more about the ingredients of section 377.

Mr Sharan then went back into action by arguing, as Mr.Aggarwal had done before, that basic rights could be subject to procedures prescribed by law. This is clearly going to be a major plank of our opponents, essentially saying that fundamental rights are fine, etc, but there are limits and these limits can be set by law.

The Bench, going back to examining the wording of s.377 asked who can tell what the `order of nature was’. Mr.Sharan replied that it had acquired a traditional meaning, but the Bench wasn’t having this vague answer and asked him to put down the meaning from Indian and foreign case law.

The Bench then brought up what is really one of the crucial points in this case. Whatever were the reasons for the law being framed in the mid 19th century, we are now in the 21st century and things have changed so perhaps the law should do so too. The Bench noted that the meaning of words have never been constant. Just in independent India we have traversed a period of 60 years and even constitutional interpretations have changed. But Mr.Sharan was not having this. He said flatly that the meaning of `natural’ was something that would not change, and this again is the crux of many homophobes arguments.

The Bench was skeptical about this, pointing out that there were test tube babies and surrogate mothers, so how would these fit terms like `order of nature’, `natural’ and `carnal intercourse’? And that really is the question that homophobes duck. They want to keep the matter focused on the unnatural gays, but basic science shows that nature can hardly be pinned down in such clear ways and their arguments have to be taken against a larger picture, which may show them to be quite weak. Still, Mr.Sharan doggedly stuck to insisting that `order of nature’ is something that is immutable and does not change with time.

Time was almost up then. The Bench then asked the parties how long they would take for arguments, but seems to have realized that this could take time. The Bench said that all parties that came to court would be given a chance to be heard and that they would hear the matter, as much as possible, on a continuous basis. The matter has been listed for Thursday, Feb 16, 2012.

This was as per the date they had given at the last time the matter came up, at the end of last year, when the Court said it would set aside several days for the hearings. It was the last matter listed for the bench, which is now of Justices Singhvi and Mukhopadhyay, and we were not sure if they would take it up, but they did.

Please note, it is still quite possible that the matter might be deferred. It is possible that once the judges realize how many parties are involved in this matter, and how most of them will want their time in court, the judges may just decide they don’t have the time at the moment and defer the hearings. We should get a better picture on this from tomorrow in Court.

But if it does get taken up, be assured that all the parties on our side are prepared and ready. This includes Naz India and Voices Against 377, who were the original parties in the Delhi High Court verdict, along with interventions from a group of parents of lgbt kids, a group of senior mental health professionals, a group of senior academics and Shyam Benegal. Against us there are some 13 odd petitions, lead by Suresh Kaushal, the TV astrologer, whose petition was the only one that got heard today.

I am linking below to a IBNlive report which mentions how Kaushal’s counsel’s opening tactic was to argue that the judgment creates a problem by being only meant for Delhi, but with a question mark over its applicability to other states. This seems to me to be a technicality because in the Indian law system judgments can be quoted and applied across the country, and the judges too don’t seem to have much patience with this line of argument.

Beyond this what I’ve gathered from sources is that the counsel went to argue that personal liberty cannot be unrestricted and uncontrolled. He also seemed to suggest that the judgment was unnecessary since if the sex was consensual then why would any complaints be filed. The simple answer to that would seem to be that this does not take into account situations of blackmail or where the threat of the law is used to coerce people.

The lawyer argued that the High Court’s legalising of homosexuality would lead to certain situations. “Suppose today a lady enters into such a profession (presumably sex work) she is hit by a statute, but if a man goes to a gay parlor there is no legislation”. At this point the Court said the matter would be carried over to the next day, so we will have to wait and see where this is going.

Let me repeat that while this is the next step we have been waiting and preparing for, it is still quite possible that things will be deferred. Even if they are not, the hearings may take time and it would still be quite a while before any verdict comes from the Court. So please lets not except any dramatic developments.

It is possible that there might be more media attention plus general comment online or perhaps even in real life conversations on this issue. If this happens we would strongly suggest that people are restrained in their comments on our opponents and refrain from getting into the crudeness that we know will probably come our way in comments on line and other places.

The most effective way to answer such views is always with politeness, logic and pointing to the strong human rights arguments on our side. This is what we will be doing in court, and what we should do outside court as well.

IBNLIVE report is at http://ibnlive.in.com/generalnewsfeed/news/sc-begins-adjudicating-gay-sex-issue-to-continue-hearing-it/962968.html

A day after raising questions over meaning of the term “order of nature” in Section 377 of the Indian penal Code (IPC), the Supreme Court on Thursday referred to sculptures of Khajuraho to emphasise that gay sex was not an offence before the British enacted the IPC in 1860.

“Social issues could not be decided on the basis of sculptures,”  Advocate Sharan replied.

“It is a reflection of society of that time and homosexuality should not be seen only in terms of sexual intercourse,” the bench, which had raised questions over the term “order of nature” in section 377 of IPC in the age of test tube babies and surrogacy, said.

Read more: British made gay sex crime, says apex court

Recommended reading:

• Devdutt’s Did Homosexuality exist in Ancient India?

Did Homosexuality Exist in Ancient India?

Anti-gay rights groups, challenging legalisation of gay sex, were today asked by the Supreme Court to explain how such acts are against the order of nature as submitted by them. A bench of justices G S Singhvi and S J Mukhopadhaya said that the interpretation of constitution has changed over the last sixty years and the issue has to be seen in that light.

“What is homosexuality? Who is the expert to explain order of nature,” the bench observed when the senior advocate Amrendra Saran submitted that nature does not recognise homosexuality and lesbianism which are against its order. “Are surrogate mothers and test tube baby also against the order of the nature,” the bench observed while asking Saran, appearing for Delhi Commission for Protection of Child Right, to explain it.

Read the full story here:

How Is Homosexuality Against Nature? Asks SC

Here are more stories on the latest SC hearing on July 2nd Delhi high court 377 verdict.

• SC begins adjudicating gay sex issue, to continue hearing it

Image courtesy:Washington Post

A federal appeals court Tuesday struck down California’s ban on same-sex marriage, clearing the way for the U.S. Supreme Court to rule on gay marriage as early as next year. The 2-1 decision by a panel of the U.S. 9th Circuit Court of Appeals found that Proposition 8, the 2008 ballot measure that limited marriage to one man and one woman, violated the U.S. Constitution. The architects of Prop. 8 have vowed to appeal.

Read more: Prop. 8: Gay-marriage ban unconstitutional, court rules

At the same time, some of us are seeking inclusion within these very institutions. Orinam is pleased to report two developments that bode well for our trans communities in India.

First, from Bangalore, comes the welcome news that  the  High Court, on Feb 5, 2012,  took on board a 27-year-old transgender in the Group D category. “C. Anu, daughter of the late Chennappa, a painter, and a resident of New Geddalahalli in Bangalore, received the appointment letter from Altamas Kabir, judge of the Supreme Court, and Karnataka High Court Chief Justice Vikramajit Sen during the valedictory ceremony of the mega lok adalats held here” says The Hindu.

Next, The Hindu’s Chennai edition, Feb 6, 2011, reports that the Church of South India Diocesan Ministerial Committee is reviewing a proposal to ordain Bharathi, a transwoman, as a priest. Bharathi has a Bachelor’s in Theology and is currently pursuing her Bachelor of Divinity in Tamil Nadu Theological Seminary. Reverend Devasahayam, Bishop of Madras Diocese, has been quoted as saying “we have asked her to visit various congregations to sensitise and educate people to recognise and respect the identity of her community”. Coverage by the Times of India is here.

Here’s wishing Anu and Bharathi much success in their chosen paths, and in forging new ones.

Anandaroopa and his partner Bryan Dalton, who was Chief of the Consular Section at the US Consulate in Chennai from 2008-2011, were among those who catalyzed the city’s first Rainbow Pride march in 2009.

Some of their contributions to visibility of LGBT issues in Chennai included:

• A public screening of the Oscar-winning film Milk on June 22, 2009,  in partnership with  U.S. Consulate General-Chennai, the Madras Film Society and the Indo-Cine Appreciation Foundation.
• Bringing gay visibility to the readers of The Hindu through an article on Pet Care in the MetroPlus (June 10, 2009) and an op-ed by Bryan Dalton ‘A Matter of Pride’  (July 10, 2010)
• Film screenings, panel discussions, and other events at the US Consulate in connection with LGBT Pride Month June 2010 and 2011.
• A contingent from GLFAA at Chennai Pride 2011.
• Their support of local community organization Sahodaran and its events.