Nearly two years ago, we posted on a court case involving Section 377, India’s notorious law criminalizing homosexuality. A case had been filed in the Delhi High Court (in 2001!) by the Naz Foundation, and the High Court had initially turned down the case. Later, the Indian Supreme Court directed the Delhi High Court to consider the case after all.
Last week, the case finally came up for a hearing, and the proceedings are described here. The chief lawyer for the Naz Foundation, Anand Grover seemed to hit all the right points: the law is a colonial relic; the law is vague to the point of absurdity, opening itself to arbitrary interpretation and arrest of presumed homosexuals; the law insults the dignity of homosexuals; and the law runs counter to the interests of public health. All of these are strong arguments (read the article for the nitty-gritties, including a rather fine distinction made between “carnal intercourse” and “sexual intercourse”).
The government’s confused defense amused one of judges hearing the case, Justice Sikri:
blockquote>Counsel for the Union of India submitted that her client had filed two affidavits, one by the National Aids Control Organization (â€œNACOâ€) under the Ministry of Health and the other by the Ministry of Home Affairs. She admitted that NACOâ€™s reply is supportive of the Petitioner. To this, Justice Sikri remarked that if that is the Unionâ€™s position, then why did it not amend the law itself?
The Counsel for the Union of India replied that the Ministry of Home Affairs has opposed the petition but that its counter was filed in 2003 prior to NACOâ€™s reply (in 2006). She admitted that the client (i.e the Ministry of Home Affairs) had not given any new or additional instructions. It therefore appears that the Ministry of Home Affairs stands by its earlier stand of contesting the petition.
Amused by the fact that the Union was divided in its opinion, Justice Sikri remarked â€œIt (homosexuality) is not a health hazard but is affecting the homeâ€. (link)
In short, the government’s initial response (from the Ministry of Home Affairs) on Section 377 contradicts the National AIDS Control Organization’s response (the latter group actually agrees with the Naz Foundation). The government here can’t coordinate its own defense, making any attempt to actually defend the law seem a little schizophrenic.