Concluding arguments in challenge to Section 377
- Part 1 -
By Rajesh Khongbantabam *
Below are the final proceedings on 6 and 7 November 2008 in Naz Foundation (India) Trust v. Government of NCT, Delhi and Others,
Writ Petition (Civil) No. 7455 of 2001, which challenges the validity of Section 377, India's anti-sodomy law, before a division bench
of Chief Justice A.P Shah and Justice Murlidharan of the Delhi High Court. Arguments have concluded and the order stands reserved.
Counter arguments by Respondent BP Singhal At the outset, H.P Sharma (Counsel for Respondent B.P Singhal) informed the Court that in 2001, offences under the IPC were reclassified by an amendment to the Criminal Procedure Code. Sharma stated that as per the revision, Police cannot make arrests for offences under Section 377 without magisterial orders.
{The Court sought a clarification. It was later confirmed that no statutory change had been effected vis-is Section 377} "The 'truth' about Lucknow arrests " Referring to the arrest of staff of Naz Foundation International (NFI) and Bharosa Trust in Lucknow in July 2001, Sharma read aloud the FIR and investigation report. He said that though the petitioners have cited the incident to press that Section 377 is used to disrupt HIV prevention, the facts are "entirely different."
Sharma alleged that neither condoms nor AIDSliterature was found in the NGO offices. On the contrary, Police recovered pictures of nude men, sexually explicit videos, an artificial penis and pamphlets that urge readers not to think about who they have sex with and how but simply ensure that HIV is not transmitted.
Sharma said he wonders whether people are being encouraged to "abandon morals in the name of AIDS Control." He further alleged that NFI could not produce any document to prove that its activities are supported by the Government. According to Sharma, the argument that HIV interventions require safe spaces is frivolous, as NACO, the largest AIDS control agency has never needed a safe space for its work.
Homosexual conduct is not dignified Next, Sharma referred to Supreme Court decisions that label offences under Section 377 sexual perversity. These decisions, he asserted, are binding on this Court. Sharma said that the petitioner cannot invoke the right to dignity as homosexual acts per se offend human dignity.
Reading aloud extracts from R v. Brown, Sharma said that gay men are known to engage in sado masochism including genital torture. He said that in this case, the House of Lords considered consenting partners 'victims' of the offence. Noting the implications of this judgment, the Chief Justice said that even where consensual sodomy in private is decriminalized, criminal sanctions will apply where the act involves grievous hurt.
Another consequence, he said, is that Police can prosecute homosexual men only if harm is caused. Sodomy is injurious per se Sharma then proceeded to argue that injury is bound to be caused during anal sex as the anus is not "designed for penile penetration" .
He said that penetration of the anus leads to tear and rupture, causing bodily harm. Sharma contended that even if Section 377 is revoked, homosexuals will be charged for causing hurt or grievous hurt. The Chief Justice observed that till date no material has been placed before this Court or any other court which suggests that anal sex per se causes injury.
To be continued....
(written on Sun Nov 16, 2008 5:05 pm (PST) )
|
* Rajesh khongbantabam is a key correspondent of HDN (Health & Development Network, Thailand) and writes about AIDS inflicted and help available for them. He is based at Imphal, Manipur.
This article was webcasted at e-pao.net on 06th October 2009.
* Comments posted by users in this discussion thread and other parts of this site are opinions of the individuals posting them (whose user ID is displayed alongside) and not the views of e-pao.net. We strongly recommend that users exercise responsibility, sensitivity and caution over language while writing your opinions which will be seen and read by other users. Please read a complete Guideline on using comments on this website.