Update on Legal Challenge to Section 377, IPC

[Guest guest]

Dear Forum,

The Special Leave Petition filed by Naz Foundation India Trust through the

Lawyers Collective HIV/AIDS Unit against the Delhi High Court’s order

dismissing the public interest litigation challenging the constitutional

validity of Section 377, Indian Penal Code, 1860 (which penalises

non-procreative sexual intercourse as “unnatural” including consensual sex

between same sex adults) came up for hearing before the Supreme Court on

3.2.06. The Bench headed by the Chief Justice of India, Y.K Sabharwal

sitting with Justice Thakkar and Justice Ravendran was of the opinion that

the Delhi High Court had erred in rejecting the original petition on grounds

that Naz India had no locus standi to file the petition as it had not

suffered personal injury and therefore could not question the law on

‘academic’ terms. One of the respondents, that is, the Union of India,

themselves submitted that the petition against Section 377 was of public

importance and merited examination. The impugned order dismissing the

petition was set aside and the matter was directed to be heard by the Delhi

High Court. Besides remitting the case back, the Supreme Court allowed the

petitioner to seek an expeditious hearing as the matter has been pending for

a considerable period of time.

In 2001, Naz India had sought a ‘reading down’ of Section 377 by the Delhi

High Court to exclude private sexual acts between consenting adults from its

penal ambit. The petition pointed out that by predominantly targeting

homosexuals, the impugned provision interferes with their fundamental right

to life, health and privacy. Naz India contended that Section 377 impeded

its efforts to impart information and supply condoms to men having sex with

men (MSM) and aggravates the risk of HIV/AIDS transmission. The petitioner

also averred that the impugned Section is used by the Police to harass

gay/transgendered persons in public spaces, rendering them vulnerable to

violence and HIV infection among other harms.

It may be pointed out that recently, Police in Lucknow arbitrarily arrested

four men under Section 377, simply because they identified as gay. Five

years ago in Lucknow itself, staff of Naz Foundation International and

Bharosa Trust, organizations supporting MSM interventions on HIV/AIDS were

arrested and confined in prison for over a month for allegedly aiding sodomy

under Section 377.

The case is expected to come up before the Delhi High Court sometime in end

February/early March. Lawyers Collective HIV/AIDS Unit is hosting a

community meeting on 25-26 March 2006 in Mumbai to, among other things,

strategize for the legal battle that lies ahead.

In solidarity,

Lawyers Collective HIV/AIDS Unit

1st Floor, 63/2, Masjid Road,

Jangpura,

New Delhi - 110 014

Phone -91-11-24377101, 24377102, 24372237

Fax - 91-11-24372236

e-mail - aidslaw1@...