Overturning India's Anti-Sodomy Law: A Tumultuous Path to Victory
JURIST Guest Columnist Anand Grover, UN Special Rapporteur on health and founder of the Lawyers Collective human rights advocacy group describes his group's decade-long fight to end discrimination based on sexual orientation in India, culminating in his recent Delhi High Court victory against India's colonial-era anti-sodomy law....
On the evening of Wednesday, 1st July, while I was in Geneva for my work as the UN Human Rights Council Special Rapporteur on Health, I received a text message followed by an e-mail from our local Advocate in Delhi informing me that the Gay Rights matter was listed for the pronouncement of the judgment by the Delhi High Court the next day. I immediately relayed the information to my Delhi team members. Within a few hours, every media outlet in India came to know of the impending judgment. There were frantic calls around the country in anticipation of the next day’s announcement. My team arranged for me to receive the operative part of the order and the complete text by e-mail as soon as possible.
Another yoke is shed...
By 10:30 the next morning the courtroom had been filled to capacity. Onlookers both inside the courtroom and throughout the country as a whole waited the outcome with bated breath. When the judges pronounced the verdict with these 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,“ ecstatic joy broke out. This joy spread as quickly as the news of the judgment spread beyond the walls of the courtroom. According to one observer, the atmosphere was electric.
I learned of the order at approximately 10:45am when the words, “We have won, we have won,” flashed across my mobile. At first I was elated. Ten years of struggle had come to an end. The first major phase was over. But then the elation gave way. I could not hold my emotions back. The pain of nearly ten years of struggle overwhelmed me. The delay in the Indian legal system had taken its toll on me. No matter how you pit yourself against them, emotions cannot be held back. I can tell you that at times the struggle was hard, arduous, and painful. Late in the press conference in Geneva I said. ”There were no words to express that moment. After years of struggle in the court, victory is like a new dawn. Another yoke of colonialism is shed from our shores”.
It all started in 2000. I had been fighting for the rights of those living with HIV since 1988. After losing my first HIV case in 1989, (Lucy R. D'Souza v. State of Goa), the Lawyers Collective HIV/AIDS Unit, the NGO which I head, won a major victory in 1997. In the case of MX v. ZY, the Bombay High Court held that there can be no discrimination against recruiting HIV positive people for employment in the public sector. After our work proved successful in a number of other cases, we decided in 2000 to start taking on the issues faced by groups especially vulnerable to HIV. We had already had a number of gay clients come to the office for advice regarding blackmail, threats, extortion, and harassment by civilians as well as by police officers on account of Section 377.
Section 377 was introduced to India’s Penal Code by the British in 1869 in order punish persons indulging in “unnatural sex.” The section was later exported in number, letter, and spirit to all countries in British Commonwealth.
Over the years the Indian Supreme Court held that the section applied to penile-non-vaginal sex. Over the last few years, the court expanded the definition to include “sexual perversity.” Consent and age were immaterial. Though it was textually facially neutral as it applied to homosexuals and heterosexuals alike, in practice the police targeted homosexuals.
I discussed the issue with a number of people in order to initiate litigation challenging the constitutional validity of Section 377. There were a number of international precedents in support of such an effort. However, nobody except Ashok Row Kavi, the well-known gay activist in Mumbai, was prepared to file suit. Initially, we thought that it would be necessary to file the petition in the Delhi High Court as we were under the impression (falsely, as it turned out) that AIDS Bhedbav Andolan, another AIDS advocacy group, had filed a petition in the Delhi High Court, and as such that filing in the Bombay High Court would have meant that our case could be transferred to the Supreme Court, thus leaving us no chance to appeal in case we lost. We ultimately persuaded the Naz Foundation to file the petition in their name. They were an appropriate choice to file a Public Interest Petition (PIL) in the Delhi High Court as they were running both an HIV program and a program for intervention within the gay community in Delhi which had been hampered because of the criminalization of gay sex on account of section 377 IPC.
Framing the Challenge
The framing of the petition was a challenge in itself. Indian Superior Courts can strike down a statutory provision on the ground that such provision violates one or more of the Fundamental Rights guaranteed in the Constitution. On some issues, it was easy to frame the challenge. There were already precedents in India and internationally that we could and did use to challenge Section 377. 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. But we also wanted to set new precedents in interpreting our Constitution on some other issues. We included two such issues. First, we wanted the concept of personality to be included in the Court’s interpretation of Article 19, which establishes such freedoms as speech, association, and assembly. However, this has not finally been decided by the Delhi High Court in the Naz case. Second, we wanted the Court to expand the definition of “sex” in its interpretation of the non-discrimination provision contained in Article 15 to include sexual orientation. I had tried to expand the scope of the meaning of “sex” in Article 15 in other cases but failed.
The Lows in the Journey....
Like all journeys, this one has had its share of trials and tribulations, of highs and lows.
The AIDS Bhedbhav Andolan group initially criticized me for filing the petition in the Delhi High Court. I let that slide. Then we realized that the AIDS Bhedbhav Andolan Petition had already been dismissed. As such, we could have easily filed the petition in the Bombay High Court after all.
Then Delhi High Court dismissed the petition on technical grounds, stating that Naz did not have the locus standi to file a petition as it was not directly affected. More importantly, the Review got dismissed in less than 5 minutes. That was a real low.
The other major low point was marked by divisiveness among the diverse groups that supported the petition. Some of the groups resented the Naz Foundation’s decision to take up the case in the first place, as it was not a gay group but rather an HIV support group. This issue became increasingly pronounced later on in the case.
On the intellectual front, we faced criticism on two issues. First, our critics felt that the petition should not have raised the privacy issue at all on the basis that such was antithetical to the practice of gay men for whom, according to argument, privacy had no meaning. On this front, I relied on my good sense and the precedent of the South African Constitutional Court which had rejected precisely this argument. The second was the criticism by some that the petition was too heavily based on HIV. Despite these criticisms, I realized that HIV was a key issue and a weak point in the Government armory and that we should exploit it. This became apparent when the National AIDS Control Organization (NACO) filed its affidavit supporting our stand on HIV and decriminalization, thus contradicting the stand of the Home Ministry. Any lawyer worth his salt will tell you never to give up an argument, especially one rooted in ideological an ideological base. Ideological bases in law are like tools. You should use them they way you want to. I decided to stick to that argument.
... and the Highs
First, my teammates and I 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 lawyers must therefore be trained both to bear a loss and also 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 to consult the community in the course of each turn we took, such as when we lost in the High Court, when the Supreme decided in our favor, and just before the Court finally agreed to take the case. In each of these occasions we consulted a wide section of the community.
Also, the Supreme Court’s order directing the Delhi High Court to decide the matter on the merits was a great turning point. Yet another was when NACO filed an affidavit in our favor.
Another profound high came when the signature campaign to support the case of decriminalization came through despite the risks attached. Well-known authors like Amartya Sen and Vikram Seth signed on. It was at that time that I realized that tide in the public mind was turning in our favor.
The greatest high was undoubtedly the final judgment, especially due to the fact of the Court’s acceptance of all of our arguments dealing with the expansion of “sex” in Constitutional interpretation to include sexual orientation.
The Impact of the Judgment
The Court has the broken the shackles of the criminalization that had gripped LGBT groups for the past 140 years. A new era has dawned in India. The judgment merely underscores the real triumph: the dignity and inclusion that we have captured. The judgment carries with it 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. Furthermore, it will carry 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 is far from over. Some parties have approached the Supreme Court. On 20th June, the Supreme Court refused to stay the order and judgment. That battle has yet to be won. The ultimate war is for minorities to be treated without discrimination on all counts. That will be a very long and arduous war.
Things Have Changed...
A lot has changed since the day we started. When we first started, nobody was prepared to take up the case. That has largely changed, though not completely. However, there is a tendency in some quarters to say that gay issues are not a matter that non-gays have a right to enter into. That is an unfortunate sentiment. Firstly, if this were so, it is debatable whether this case would have been taken 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 it is fundamentally 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. I think this issue will take some time to resolve, but I hope that people do not become intransigent on this as that will only harm the movement in the long run, and the fight is still far from over.
Anand Grover is the UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of health, a practicing attorney, and the founder of human rights advocacy group the Lawyers Collective.
July 21, 2009
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