Thursday, September 02, 2004

Dear friends,

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

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 or

In solidarity,

Naz Foundation (India) Trust & Lawyers Collective HIV/AIDS Unit


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