[Reader-list] 377 Case- Minutes of arguments on 25th September (Voices Against 377)

[Lawrence Liang]

---------- Forwarded message ----------
From: siddharth narrain <siddharth.narrain at gmail.com>
Date: Thu, 25 Sep 2008 23:12:58 +0530


*Naz Foundation v **Union** of **India**- Proceedings on September 25th,
2008*

Chief Justice A.P. Shah and Justice S. Muralidhar heard arguments from the
intervenors in the case, Voices Against 377, a coalition of human rights,
child rights, women's rights and LGBT rights groups that had intervened in
support of the petitioners Naz Foundation. Shyam Divan, the lawyer for the
petitioners said that a wide group of persons from diverse backgrounds were
supporting this petition.

Divan began his arguments by outlining the impact of criminalization on
homosexuals. "This provision subjects male and female homosexuals as well as
transgenders to repressive, cruel and disparaging treatment that destroys
their sense of self esteem, inflicts grave physical and psychological harm
on members of the LGBT community, inhibits the personal growth of these
persons and prevents them from attaining fulfillment in personal,
professional, economic and other spheres of life," he said. "Section 377
degrades such individuals into sub-human, second-class citizens, vulnerable
to continuous exploitation and harassment."

Divan said that he would demonstrate, through records of incidents from
across the country, as well as personal affidavits, reports and orders, that
the continuance of section 377 on the statute book operated to brutalise a
vulnerable, minority segment of citizens for no fault of theirs. "A segment
of society is criminalized and brutalized to a point where individuals are
forced to deny the core of their identity and vital dimensions of their
personality", he said.

Referring to Professor Ryan Goodman's study on the impact of sodomy laws on
LGBT persons in South Africa, Divan emphasized that condemnation expressed
through law shapes an individual's identity and self-esteem. "They produce
regimes of surveillance that serve to operate in a dispersed manner, and
such laws serve to embed illegality within the identity of homosexuals."

He argued that section 377 was a direct violation of the identity, dignity,
and freedom of the individual, and that it fostered widespread violence,
including rape and torture of LGBT persons, at the hands of the police and
society. "Section 377 allows for the legal and extra-legal harassment,
blackmail, extortion and discrimination against LGBT persons." "The harm
inflicted by section 377 radiates out and affects the very identity of LGBT
persons. Sexuality is a central aspect of human personality, and in a
climate of fear created by section 377 it becomes impossible to own and
express one's sexuality, thereby silencing a core part of one's identity. It
directly affects the sense of dignity, psychological well-being and
self-esteem of LGBT persons," he said.

Diwan cited the Human Rights Watch Report report titled "Epidemic of Abuse:
Police Harassment of HIV/AIDS social workers in India" which documented the
harassment of HIV/AIDS workers in India. This report documents the police
raid of the office of Bharosa Trust in Lucknow in June 2001, when the police
arrested four health care workers and arrested them under section 377. They
were charged with possessing obscene material that was nothing but
educational material. However, since 377 was a non bailable offence, the
health care workers were jailed for 48 days.

Referring to judges' observations related to the Criminal Tribes Act in the
last hearing. Divan said that during the colonial period hijras were
criminalized on the basis of their identity, and in 1897, the criminal
Tribes Act was amended to include eunuchs. "While this act has been
repealed, the attachment of stigma continues", he said.

The next incident (which occurred in April 2006) that Divan narrated was
that of two adult lesbian women in Delhi who were in a relationship. The
father of one of the women 'X' filed a complaint stating that she was
abducted by her partner 'Y'. Y was arrested and brought before the police.  X
wanted to file a statement under section 164 of the Criminal Procedure Code
saying that she had left her parental home of her own free will. However her
application was refused, and the Magistrate, in his order recorded that it
"appeared prima facie that under the guise of the section there were hidden
allegations of an offence under section 377 as well. Divan pointed out that
to constitute an offence under section 377 there needs to be penetration,
and thereby the section could not be applied in this case. However, since
section 377 served to criminalise all homosexuality, and not merely certain
sexual acts, it applied to lesbians as well.

Divan then referred to an incident in Bangalore in 2004, which involved the
rape of Kokila, a hijra who was a community mobiliser for Sangama, an
organization that worked on the human rights of sexual minorities in
Bangalore.  Kokila was raped by ten goondas, and the police instead of
helping her, tortured her in the police station. Diwan stressed that this
incident happened because she was a transgendered person.

Justice Muralidhar asked Divan what recourse could be take for the offences
committed against Kokila. Diwan said that this would be an instance where
377 could be used. He said that for non consensual acts and sex with minors,
377 should be retained in the statute book.

Diwan also referred to the Jayalakshmi case that was decided by Justice Shah
in which the petitioner's sister, who was a hijra, committed suicide after
being tortured and sexually assaulted by the police.

He talked about was the arrest of four gay men in Lucknow in 2006, for
allegedly indulging in sex in a picnic spot. Reports by both Human Rights
Watch and the National Coalition for Sexual Rights that this incident was
actually a case of police entrapment, and that none of the men arrested were
having sex in public.

Finally, Divan referred to the complaint filed by the Inspector of Police,
Bangalore on September 11, 2006, where he states that he raided Cubbon Park
and found 12 khojas  who with "an intention to engage in unprotected,
unnatural sex, were standing in the shade of trees and soliciting passers
by". He said that by such unsafe, immoral, sexual acts, they may spread
immoral diseases like AIDS, which may cause severe harm to the general
public and thereby are likely to affect public health". Divan said that the
affidavit of Madhumita, one of the persons arrested in the case showed that
the police version was false. Madhumita states that she was standing at a
bus stand when she was surrounded 5 constables, and arrested without giving
any reason. She said that she was targeted by the police because she chose
to dress as a woman, and that section 377 branded her as criminal and made
her vulnerable to harassment and persecution from the police.

After the narration of these incidents, Divan talked about the recently
framed Yogyakarta Principles on sexual orientation and gender identity to
clarify what exactly was meant by these terms.

The right to dignity, said Divan, would be violated by section 377. Drawing
from the South African Constitutional Court decision in the NCGLE case,
Divan said, "Gay men are at risk of arrest, prosecution, and conviction