The petition challenging the anti-sodomy law in India, Section 377 dismissed. . . .
UPDATE - September 3rd, 2004
The petition challenging the anti-sodomy law in India,
Section 377 of the Indian Penal Code (IPC) was dismissed by the Delhi High
Court, by the bench comprising Chief Justice BC Patel and Justice BD Ahmed,
today, i.e. 2 September 2004.
The petition had been admitted on 15.1.2003, meaning thereby that the petition
had to be fully heard on merits. Notice had also been issued to the Attorney
General in view of the constitutional importance of the issue. However, two of
the Respondents to the petition, i.e. the Delhi State AIDS Control Society (DSACS)
and the National AIDS Control Organisation (NACO) had not filed their affidavits
despite the order of 15.1.2003.
Today, when the matter was taken up as the last item just before the Court rose
at approximately 4.15 pm, the advocate for the Petitioner, Trideep Pais, pointed
out that the two Respondents, DSACS and NACO, had not filed their affidavits
despite the order of the court dated 15.1.2003. The Court in turn asked whether
there was any case or FIR filed against the Petitioner, i.e. NAZ Foundation
(India) Trust, under S.377 of the IPC, to which the advocate mentioned that
there was none. The Court dismissed the
petition on the ground that since there was no FIR, there was no 'cause of
action' for the petition. The exact court order is not yet available.
We feel that the order of the Delhi High Court is not correct as:
1. The petition was already admitted which meant that it had to be argued and
heard fully on the merits of the case and it could not be dismissed on the
preliminary point viz., 'cause of action' not existing.
2. Notice had been issued to the Attorney General, which meant that the court felt earlier that the constitutional validity of S.377 was a matter of import that had to be gone into by the court. This also fortifies the argument that the matter had to be argued on merits
3. It is settled law that an apprehension of violation of fundamental rights, i.e. the likelihood of an arrest under S.377, itself is a ground for approaching the High Court or the Supreme Court and constitutes a 'cause of action'. Actual arrest or registration of an FIR is not necessary.
4. A public interest petition can be filed bona fide by
public spirited citizens, in this case NAZ Foundation, when others are unable or
incapable of approaching the court, in this case MSM who do not feel confident
of approaching the court themselves.
At this time we feel that there are certain options possible like a Review
Petition before the Delhi High Court or a Special Leave Petition before the
Supreme Court (a follow-up email explaining these options will be put on the
list-serve in the next couple of days). However, we would appreciate any inputs
from all those concerned to decide the best course of action to be taken.
We feel extremely dejected at this juncture but also feel that this is a time to
regroup and renew efforts around S.377. It would be useful if this list-serve
space could be used as one in which further discussion takes place. We would be
keen to see what follow-up is possible so that all of us can brainstorm further.
We look forward to getting feedback from all of you on this list-serve and also
via email at aidslaw@lawyerscollective.org
or nazindia@bol.net.in.
In solidarity,
Vivek Divan
for
Naz Foundation (India) Trust & Lawyers Collective HIV/AIDS Unit