The Right that Dares to Speak its Name Naz Foundation vs. Union of India and Others Decriminalising Sexual Orientation and Gender Identity in India Published by: Alternative Law Forum, Bangalore, India The Right that Dares to Speak its Name Naz Foundation vs. Union of India and Others Decriminalising Sexual Orientation and Gender Identity in India 2009 Published by: Alternative Law Forum, Bangalore, India ! Publishing history Edition : August, 2009 Text Compiled and Edited by : Arvind Narrain Marcus Eldridge English Edition : 1000 copies Suggested Contribution : Rs. 50/- Published by : Alternative Law Forum, Bangalore Cover Page/Layout by : Vinay C Printed by : National Printing Press, Bangalore This monograph has been published for the purpose of promoting a better understanding of the Naz Foundation decision. It is solely intended for non- commercial purposes, and to enable further research, criticism and review of the Judgment. All materials extracted and reprinted are consistent with Fair dealing principles. This compilation may be distributed and republished for non-commercial or educational purposes. Introduction. .................................................................................................. 4 A Schematic Guide: Naz Foundation vs. Union of India and Others........ 9 The Law ............................................................................................ 9 The Parties ...................................................................................... 10 The Bench....................................................................................... 11 of Contents Table The Ruling ......................................................................................12 The Rationale .................................................................................12 Conclusion ...................................................................................... 22 Basis of the Ruling ........................................................................ 23 Territorial applicability of the judgment ................................... 28 Background: The Naz Judgment ................................................................29 Outline of arguments on Behalf of Respondent No. 8, Voices Against 377 ........................................................................ 29 Edited transcript of the final arguments before the Delhi High Court........................................................................... 48 Commentaries: Reactions to the Naz Judgment......................................93 On Freedom’s avenue: Gautam Bhan...........................................93 Reforming Macaulay: KaJal BharadwaJ .........................................97 India: From ‘perversion’ to right to life with dignity: Kalpana Kannabiran .......................................................................101 Who’s afraid of homosexuality? Ram Jethmalani .....................105 Striving for magic in the city of words: Lawrence Liang and Siddharth Narrain....................................................................109 Its about all of us: Pratap Bhanu Mehta .....................................115 Good for all minorities: Tarunabh Khaitan ...............................118 Navigating the Noteworthy and the Nebulous in Naz Foundation: Vikram Raghavan ...........................................122 Keep Religion out of the Gay Debate: Sidharth Bhatia .........127 Afterword. ...................................................................................................131 4 The Right that Dares to Speak its Name Introduction The judgment of the Delhi High Court in Naz Foundation v. Union of India, delivered on 2nd July, 2009, triggered a euphoric response from the Lesbian, Gay, Bisexual and Transgender (LGBT) community as well as from the wider activist community. The judgment was at the same time both a remarkable assertion that LGBT persons are indeed a part of the Indian nation as well as a statement that the judiciary remains an institution committed to the protection of those who might be despised by a majoritarian logic. What the Naz judgment also triggered was a wider conversation on LGBT rights in living rooms, offices and tea shops across the country. LGBT persons were out of the closet and literally onto the front pages of all Indian papers and news channels. It’s very rare for a judgment to have such an instantaneous social impact as to actually begin a national conversation. Therein lay the magic of the Naz judgment! The judgment in 2009 really built upon a decade of work by the LGBT activists. The most recent (prior to the Naz judgment that is) visible manifestation of the wider profile that LGBT struggles were getting in India was really the Queer pride events which took place in Delhi, Bangalore, Kolkata, Bhubaneshwar and Chennai on the Decriminalising Sexual Orientation and Gender Identity in India 5 weekend before the Naz judgment, on June 28, 2009. The fact that the judgment was preceded by the Pride events, although coincidental, also points to the fact that the uniqueness of the struggle against Section 377 was that it was simultaneously a political demand and a legal battle. As a political demand, the struggle against Section 377 can possibly date back to the protest against police harassment which was organised by AIDS Bedhbhav Virodhi Andolan (ABVA) in 1993 where for the first time the demand for the repeal of the law was raised in a public manner. Since then the LGBT community has engaged the public attention through numerous protests, demonstrations, Fact Finding Reports, Conferences, Film Festivals and of course (most recently) pride marches. The court room struggle dates back to the first legal challenge to Section 377 which was filed by ABVA in 1994, in response to a statement by Kiran Bedi that she could not distribute condoms in prison as it would amount to abetting an offence under Section 377. However, the petition was dismissed as the ABVA group became defunct. The next key development was the filing of a petition by the Naz Foundation challenging Section 377 in 2001. The uniqueness of the Naz petition is that though it began as a legal petition by one NGO it slowly gathered wider support both within the LGBT community as well as within sections of the public. Thus the Naz petition began to carry the burden of the expectations of a community, with each torturous turn in the legal proceedings followed with great interest by members of the community. Initially the way the LGBT community was kept abreast of the legal developments was both through the organising of periodic consultations on the petition by the Lawyers Collective (the Lawyers for Naz Foundation) for LGBT groups as well as by regular postings on an LGBT listserve. However the media soon began to evince more interest and report regularly on the developments. For building this uniquely ‘public character’ of the ‘public interest litigation’, credit must go to the Lawyers Collective which began a process of consulting with the community at each stage of the public interest litigation. 6 The Right that Dares to Speak its Name The various shifts and turns in the Naz petition which were so avidly followed by the LGBT community included: 2002 Joint Action Kannur (JACK) filed an intervention supporting the retention of the law on the ground that HIV does not cause AIDS, and that this law is required to prevent HIV from spreading. 2003 The Government of India (Ministry of Home Affairs) filed an affidavit supporting the retention of the law on the grounds that the criminal law must reflect public morality and that Indian society disapproved of homosexuality. 2004 The Delhi High Court dismissed the petition on the ground that the petitioner, Naz Foundation, was not affected by Section 377 and hence had no ‘locus standi’ to challenge the law. 2004 The Delhi High Court rejected a review petition filed which challenged the above mentioned order. 2006 On an appeal filed by Naz Foundation, The Supreme Court passed an order remanding the case back to the Delhi High Court so the matter could be heard on merits . 2006 National AIDS Control Organisation (NACO) filed an affidavit stating that the enforcement of Section 377 is a hindrance to HIV prevention efforts. 2006 An intervention was filed by B.P. Singhal stating that homosexuality is against Indian culture and that the law needs to be retained. 2006 An intervention was filed by Voices Against 377 supporting the petitioner and stating that Section 377 is violative of the fundamental rights of LGBT persons. 2008 The matter was posted for final arguments before C.J. Shah and J. Muralidhar. 2009 2 July – Judgment delivered. Decriminalising Sexual Orientation and Gender Identity in India 7 As can be noted from the above time line, some of the key developments were the interventions filed by an AIDS denial group called Joint Action Kannur (JACK) as well as by B.P. Singhal, a former BJP Rajya Sabha MP. These developments indicated that the struggle against Section 377 not only had to factor in the state but also take on board civil society voices such as that of the Hindu Right as well as AIDS-deniers. In 2006, to further strengthen the petitioners Naz Foundation, ‘Voices Against Sec 377’, a coalition of child rights, women’s rights and queer rights groups, filed an intervention supporting the demand for a reading down of the law. So, when the Delhi High Court Bench of Chief Justice Shah and Justice Muralidhar heard the final arguments in 2008, they had to