The Legal Battle


Sukhdeep Singh talks to human rights lawyer Arvind Narrain about the ongoing case on Sec 377

With the advent of April, the day when the Supreme Court starts hearing the various petitions in the Sec 377 case is also fast approaching. Since the last hearing of the case, a group of 19 parents of LGBT children from different parts of the country and different spheres of life have come together and filed a petition before the Supreme Court saying that “Section 377 is a threat to family values, as it directly affects the rights of the Applicants to safeguard their families from illegal and arbitrary intrusion from the state authorities. Section 377 invades the sanctity of the family, home or correspondence and allows for unlawful attacks on the honour and reputation of both parents of LBGT persons as well as LGBT persons themselves.” Another petition has been filed by a group of thirteen mental health professions saying that “by forcing them to hide their sexuality, this law caused mental stress and anxiety to LGBT persons.” With this, the number of petitions in support of the Delhi High Court verdict decriminalizing homosexuality reaches six, as against thirteen petitions opposing the verdict.

Talking to Gaylaxy about the ongoing case, noted human rights lawyer Arvind Narrain explained that the mental health professionals will be making three primary arguments. “The mental health professionals will argue that scientifically, homosexuality is not a disorder. It is a part of human being, in which case, it makes no sense to criminalise something which is in-born trait of human being. The other argument that they are making is the notion of intimacy, that intimacy is very important for all human beings and when we criminalise certain kind of intimate acts, basically we are penalizing certain people and letting them know that they cannot participate in this part of the human experience. The third argument that they are making is that the law has an adverse mental health impact .”

On their part, the parents would be arguing that Sec 377 is a threat to the notion of family as every person is entitled to respect for one’s family life without letting other’s interfere in the family matter. However, Sec 377 empowers the State to interfere within the family affairs. Another argument that would be put forward is how, due to the criminalizing effect of the law there is shame and stigma around the matter due to which children have kept an important part of their life a secret, leading to a kind of separation in the family. “They will conclude by saying that Sec 377 is really a threat to the notion of the Indian family in terms of peaceful enjoyment of family life and the ability to build relationship, which is what family life should really be all about,” said Arvind.

Voices Against 377, another appellant in the case, shall raise the question of dignity, stating that discrimination is an issue of assault on dignity. “An assault on dignity is different from the issue of class, where there is an economic deprivation. Here it is really about humiliation, which is the core of the entire problem, and what the law sanctions is such a kind of daily humiliation,” added Mr. Narrain. The focus of Naz India Foundation will be the manner in which Sec 377 impedes the fight against HIV/AIDS-  a world epidemic now.

On the other hand, Arvind pointed out that the strongest argument in the armour of those opposing the 2nd July judgement would be of morality, which would be based on both religious and supposedly social view. So one line of argument could be that religious scripture prohibits homosexuality and thus it would be immoral for the law to go. “But no religion is uniformly homophobic, every religion has within it the spaces,” he pointed out. The other line of argument would be that morality is governed by the opinion of the majority and the law should reflect the public of the country. “The strongest argument would be the morality argument, because what is morality is a tough question to answer,” he opined.

On being asked whether the recent case in USA where courts held that religious groups have a right to protest against homosexuality could be used as an example to over-turn Delhi High Courts 2nd July ruling, Arvind said, “Religion in India has a place, but can the religion be embodied in the criminal law, which is applicable to all the citizens? Can the religious view of any community be embodied in the criminal law? It can’t because in India the core thing what we have is secularism, which is one of the basic pillars of Indian constitution which means that law cannot be allowed to embody the view of any one particular religion.” Delving deeper into the topic, he pointed out that this particular case in USA involved a religious group protesting outside a funeral shouting anti-gay slogans and USA being a strong contender of freedom of speech, the courts have held that though one might be offended, one might be hurt, they must protect the freedom of speech. “Contrary to this, in the Indian context what we are talking about is embodying the views of religion in the criminal law, which goes against the very principle of secularism in India,” he added.

As April 19th approaches, both the sides are getting ready with their arguments and would be filing their replies. But if you are hoping for a final verdict on that day, then you might just be getting a bit too impatient as the hearing in itself will take some time. “19th is when they (the Supreme Court bench) have asked to file a written submission, so all the parties will file in their written submission. Then they will begin hearing the matter, which means they will start hearing all the nineteen parties. So obviously they won’t be able to hear all the parties that day. So it could go on for some time,” told Arvind.