The first phase began formally in 2001 when Naz Foundation decided to file the case in the Delhi High Court, but its history can be traced back to 1994 when Kiran Bedi, then Superintendent of the Tihar Jail, refused to allow condoms to be distributed to prisoners. The debates that followed resulted in a petition filed by the AIDS Bedhbhav Virodh Andolan (ABVA) in New Delhi that asked for the repeal of section 377 of the Indian Penal Code, the law that criminalised homosexuality in India. While the ABVA petition did not follow through with the petition in court, the contents and arguments in this petition were far ahead of its time.
In September 2004, a two-Judge Bench of the Delhi High Court, consisting of Chief Justice B. C. Patel and Justice Badar Durrez Ahmed, dismissed the petition on the grounds that there was no cause of action in the petition since there was no prosecution pending against the petitioner. The court said that an academic challenge to the constitutionality of a legislative provision couldn’t be entertained. i.e. the court was saying that the petitioners had not shown evidence of actual prosecutions under the law, and that the challenge to the law was more theoretical than grounded in the reality of misuse of the law. However, the court did not take into account the fact that PILs (public interest litigations) allowed for NGOs or individuals to represent affected parties. In this case, the reason individuals were not filing cases directly was because of the stigma attached to homosexuality, and the difficulty in finding persons who would be willing to come to court for relief.
Naz filed a review petition before the High Court pointing out that the homosexual community in India, on account of Section 377, is a socially disadvantaged group, which is unable to approach the court directly for fear of being identified and subject to harassment by the police.
The High Court dismissed the review petition as well, upon which the petitioners filed a special leave petition (SLP) before the Supreme Court on the limited question of whether the High Court could dismiss the petition on the grounds that there was no cause of action. The SLP was heard by Justices Y. K. Sabharwal and P. P. Naolekar. The court, while issuing notice to the Central Government to be represented before it in the next hearing, said that the petition did not deal with an academic question and that this was a public interest issue that was being debated all over the world. The Judges observed that the High Court could not refuse to entertain such an issue only on the grounds that it was merely academic and that there was no personal injury to any party. The Supreme Court, thus dismissed the High Court’s reasoning, and reinstated the case at the High Court.
The last response from the government to the petition filed in the court was the National Democratic Alliance (NDA) government’s submissions in September 2003. The Ministry of Law and Justice had said then that Section 377 should remain because it was a tool that could be used by the government to interfere in the private sphere in “the interest of public safety and the protection of health and morals”. The government claimed that Section 377 was used in cases of assault and deleting the section could “open the floodgates of delinquent behaviour”. The government said that Section 377 was needed to deal with cases of child sexual abuse.
The second phase began in 2006 which was a year packed with new developments. In a crucial move, the National AIDS Control Organisation, an arm of the Union Health Ministry (then headed by Dr Anbumani Ramodass) filed an affidavit in the court saying that the existence of Section 377 on the statute books is a serious impediment to HIV/AIDS prevention work in the country. The second important development was the intervention filed by ex-BJP Member of Parliament B. P. Singhal who said that the law should be retained in order to protect Indian values and culture. In his affidavit Mr Singhal claimed that homosexuals were more prone to murder, accidents and diseases, and that the human body was not designed for anal sex. The third development in 2006 was the intervention filed by a coalition of human rights, women’s rights, queer rights and child rights groups in Delhi called Voices Against 377 supporting the contention of Naz Foundation that the law should be read down. These developments set the phase for the final proceedings in the case.
- 2008 onwards
The third phase of the case included a series of very important developments, both within and outside the court. The change in re-election of the UPA government at the Centre in 2008 brought with it a change in guard at the Ministries of Home, Law and Health at the Centre, the three Ministries that were driving the government’s stand on Section 377. Bangalore and Mumbai pride marches of 2008 and the Delhi, Kolkata, Chennai, Bangalore, Bhubaneshwar pride marches of June 2009 (which preceded the judgment by a few days), was the repeal of section 377.
All these three phases are marked by the changes that are taking place in the larger Indian landscape. While critics have pointed out that the focus on HIV/AIDS at times did take away from the rights discourses of those working with sexuality issues in the country, it cannot be denied that the HIV/AIDS route gave those working on sexuality issues a certain legitimacy and space to begin work in this area.
Also, the liberalisation and opening up of the Indian market had major implications for the space available for the circulation of material around sex and sexuality. In a process that Nivedita Menon and Aditya Nigam call the ‘Globalisation of Desire’, the Indian media market, including the regional media, and information flows increased exponentially. Indian middle class families were soon being exposed to Will and Grace, young professionals were earning enough to break free of family control, and there were enough gay and lesbian persons who were moving to urban centres to form ‘little communities of love’. This facilitated the formation of non-conventional and ‘alternative’ identities helping them consolidate their struggle on the legal and social front.
Originally posted by Siddharth Narain on pad.ma