Naz Foundation And What Follows

[A special thanks to Guest Author, Jane Doe, for explaining the bottom line of what the recent High Court just decided.]

“From a positivistic point of view, equality is antithetic to arbitrariness”.

E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3

I am over the moon about the judgement. This is brilliant not only because it gives gay people (men specifically), the right to love (& fuck) who they want. And takes it out of the purview of the state. But also, because I have faith in our constitution and the protection it extends to its citizens. This is now a victory for not only India’s LGBT community, but it also reiterates the supremacy of Articles 14, 15 and the favourite of many- Article 21. (19 we already had). 3 cheers to all those at Naz.

Broom asked me to do a post on the legal implications of Naz Foundation v. Government of NCT of Delhi & Ors. (WP(C) No.7455/2001). I did read the entire judgement and will not launch into an elaborate discussion on the merits of the judgment. I’ll try to be as brief as possible (it’s a 105 page decision after all).

Now, I’ve been reading a lot of blogs and there’s been lots of discussion about the judgement and also for a long time now, Section 377. Being a member of the much hated legal brethren there are a few points/contentions/doubts/statements I’d like to clarify.

Issue #1: Applicability of the judgement/ Jurisdictional aspect (of the Delhi High Court): Per se, the judgement of a High Court (or any lower court for that matter), does not lay down the law in any other state not within the jurisdiction of that specific High Court. However, the situation at hand is unique and the substance of the case, unprecedented. In 2004, the Supreme Court held in the case of Kusum Ingots v. Union of India

An order passed on writ petition questioning the constitutionality of a Parliamentary Act, whether interim or final, will have effect throughout the territory of India subject of course to the applicability of the Act. Thus in the present matter, the constitutionality of Section 377 of the Indian Penal Code was challenged in a writ petition before the Delhi High Court. The IPC also has nationwide applicability (except J&K) and therefore this judgement will apply all over.

Another side to this is the fact that this is an unprecedented issue. There have been cases in various courts all over the country wherein individuals have been prosecuted by the state. (That was one of the grounds on which the HC dismissed the petition the petition in the first place. The HC held that the petitioners in this matter were not interested parties (i.e. – had not been affected directly by the law) and the HC would not entertain petitions of such academic interest.) The petitioners (Naz Foundation) then took the matter to the Supreme Court which directed the HC to reconsider the matter. So there is no other judgement on the matter. Thus in the absence of any other conflicting judgement from any of the other High courts in the country this judgement stands and is valid until an amendment to the section is brought about. Note that a complete repeal of the section is not possible as the section was enacted to penalize sodomy. Thus while consensual sex between members of the same sex is permitted, sodomy is not. The situation is now analogous to the difference between heterosexual intercourse and rape. So yes, as of now, it applies pan India.

There is also the worry that the Supreme Court may reverse the judgement. Personally, I don’t think there’s much likelihood of that. While that the SC has a predilection for controversial and sometimes absolutely ridiculous judgements, bear in mind that it was the SC that directed the HC to review the petition in the first place. Also this is an issue of Part IV of the Constitution (fundamental rights) and who better than the apex court to uphold this? So unless these fundamentalist jackasses decide to go ahead and file a whole new petition, I wouldn’t be too worried. Also any such petition if filed would remain sub judice for a long time and till then Naz would still be the settled position of law.

I was only asked to write something on issue 1, but like I’ve been posting everywhere, I’d like to make a few clarifications on the impugned Section 377 and its applicability.

Issue #2: Applicability of Section 377: During my years in law school I have done four projects on homosexuality/ homosexual unions. I’ve gone through the psychological, sociological, family law and jurisprudential points of view. Now I’m no Fali Nariman, but as far as I can tell, the section does not apply to lesbians. Thus, there is a distinction drawn between male and female homosexuals by the law and of course, heterosexuals and homosexuals by society.

The section reads as follows:

Section 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 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.

The section refers to carnal intercourse and deems it ‘unnatural’ and illegal and parties engaged in such intercourse are liable. The term unnatural sexual offence has been used in the past to refer to any sexually deviant act, often deemed so because such does not lead to procreation. Thus anal sex would be hit squarely by the section and anal sex between a man and a woman would also come within the purview of the act.

In State of Kerala v. K. Govindan,( 1969 CrLJ 818) , the Kerala High Court Judge held that putting male organ into any part of the victim’s body, which was an initiative act of sexual intercourse for the purpose of his satisfying the sexual appetite, would be an act punishable under Section 377, IPC.

The Law Commission recommended Changes in the IPC in its 172nd Law Commission Report, 2000 according to which penetration could be with the male organ into any part of the other person’s body or manipulating any part of the body of another person so as to cause penetration.

Thus the section was enacted in India under colonial rule in keeping with the long succession of Anti Buggery laws enacted by the British legislature. Oscar Wilde was convicted under the Buggery Act, 1533 and many others in India have been similarly convicted under a law which is a successor to the Buggery Act. There have been cases of lesbians running away from their homes, and no legal action has or can be taken against them. Like I’ve said before, 377 applied to homosexual men (the G) and not the rest (L, Bisexual women & T). Ajay Mafatlal wasn’t roughed up by police and all of us have been asked by a hijra for money. (India has never been unkind to transgender people.) And with lesbians, no one liked it, but then, according to the law a penis is a prerequisite to attract 377.

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