III NATIONAL MOOT COURT COMPETITION
5-8 MARCH, 2009
Organised by
Jamia Millia Islamia, New Delhi, India
COMPROMIS FOR THE MOOT COURT COMPETITION
Venue
Faculty of Law, Jamia Millia Islamia, Jamia Nagar, New Delhi- 110025,
India
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LGBT Moot Court Problem Abstract, Assignments of Mock Trial and Moot Court
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III NATIONAL MOOT COURT COMPETITION
5-8 MARCH, 2009
Organised by
Jamia Millia Islamia, New Delhi, India
COMPROMIS FOR THE MOOT COURT COMPETITION
Venue
Faculty of Law, Jamia Millia Islamia, Jamia Nagar, New Delhi- 110025,
India
IN THE SUPREME COURT OF INDIA
Voices for Queer Rights vs. Union of India
- Shreedharan, a 30 year old Indian citizen, is an accountant by profession and is gay (homosexual) by sexual orientation. His parents have had divorce, long back when he was 17 years of age. He has done his schooling from Boston, MA and graduated from Philadelphia, PA with specialization in Financial Accounting.
- In 2003 after working in America for a few years, he decides to return to his father, in India. His father, an old man of 75 years of age, stays alone at his Gurgaon based residence, whose wife i.e. Shreedharan’s mother remarried after a few months of their divorce. Within a few weeks of his arrival, Shreedharan gets a job with a Multinational Corporation based in Mumbai as an accountant.
- In March, 2003 Shreedharan and his father shifted to Mumbai, and rented a flat at Bandra which was situated at a distance of 1 KM from his office. In the winters of November, 2003 Shreedharan's father died due to cardiac arrest. This changed Shreedharan’s life and he becomes very sad and alone. Time passes for him as a relentless flow and he tries to cope up with his expanding professional liabilities.
- The feeling of being a homosexual in a homophobic Indian society surrounds him greatly and he develops fears and complexes in his mind. On the one hand, he dreams of leading a happy social life where there is dignity and respect for him despite his perverted sexual orientation but when he wakes up, he finds himself in the midst of harsh realities where there is fear and loathing for homosexuals in the minds of people in this country. He develops strong physical as well as mental urges to settle down with another queer fellow of his age, which as per his thinking is no crime, because he feels that to led a life with dignity and respect is
nature which as a result is polluting the entire society by encouraging others to indulge and abet in this crime.”
- Finally, in December, 2006 Shreedharan and Rahul are being awarded an imprisonment for a term of seven years by the lower court. They preferred an appeal against the sentence in the Bombay High Court.
- In between this span, Shreedharan writes a book while being in the jail about the journey of a gay man in a homophobic Indian society. He tries to bring up the general loathing, fear and sense of insecurity in the mind of a common man about a homosexual. He somewhat reproduces his own story, of how law can destroy the life and career of two young men, just because they are born as homosexuals. In the epilogue of his book, he throws some open questions to the readers and asks them to make a rethink. These questions are:
- Do Homosexuals have no right to lead a happy life at par with that of other straight members of the society?
- Do adult homosexuals have no right to marry or at least form a civil union with a partner of their choice under an agreement?
- Why is Gay love made criminal whereas straight love is given full and unconditional support of law and the society?
- Why is it so, that when two adult heterosexuals consensually cohabit or enter into sexual activities in private, its no crime, but the moment two adult gays enter into consensual sexual activities in private, it is held as criminal under the age-old, obsolete and archaic laws of Indian criminal legal system?
He finally decides to give his book the title “Being Homosexual, Is that a sin?”. Within a very short span of its release, the book becomes a Bestseller in the Indian as well as in the Western Market.
- Naturally, by then, media also changed its stereotypic perception about gays and as a result of the huge success of this book; the major national news agencies provided a lot of focus on the issues pertaining to Gay Rights. Various
programmes, talk shows and discussions were organised by the media at various levels of the society, which involved enormous public participation. For the first time in the history of Indian Democracy, queer issues were raised openly at such a mass level by the media. Meanwhile, this kind of a pro-human rights campaign, grabbed a lot of public support.
- The media highlighted the ongoing exploitation and discrimination of homosexuals done in the hands of the law as well as the judiciary in a country which is based on a constitutional scheme, a constitution which stands on the pillars of the liberal ideas of democracy, fraternity, liberty and equality. All these kinds of stories in the print and electronic media surrounding the Gay Rights charged the queer community and persuaded them to raise their voices in protest, against section 377. The incident of the recent judgment of a Bombay Court in Shreedharan’s and Rahul’s case alarmed and disturbed the queer community in India, and made it clear to them that the threat of Section 377 being used as a means of criminalization of gay sex was a concern that needed to be urgently addressed.
- Subsequently, ‘pride marches’ were organised at various metros such as Mumbai, Delhi, Bangalore and Kolkata to celebrate the queer freedom and to protest against section 377, which criminalises gay sexual activities such as sodomy calling it an ‘unnatural offence’. Although, these protest marches were mainly organised by the queer groups and certain NGO’s working in this area, but it also involved immense participation from the homosexual community as well as the common masses. Along with the growing social support, the leading media houses also started regularly raising Gay Rights issues.
- In the midst of all this, on 1 st^ March, 2008 a NGO named “voices for queer rights” was formed by some renowned national and international human right activists which included people from a multitude of professions such as journalism, law, social work, film making etc. which was started as a registered charitable trust. It was also registered under the Foreign Contribution Regulation
- Section 377’s prohibition of non-procreative sexual acts criminalizes predominantly homosexual relations and is propelled by a prejudicial and irrational notion of the term ‘sex’. Section 377 creates the grounds for vagueness and discrimination as it disproportionately affects homosexuals because it violates their right to engage in private sexual acts between consenting adults.
- The right to freedom of speech and expression is necessary for the overall development of one’s personality, character and orientation. By the criminalization of a particular sexual conduct, particularly those engaged in by sexuality minorities, section 377 imposes a culture of silence around these issues. It restricts an individual’s ability to make personal statements about one’s sexual preference, as well as discuss, broadcast, circulate and publish material with respect to one’s sexual preference.
- In its response, the Government of India contented that "while the right to respect for private and family life is undisputed, interference by public authority in the interest of public safety and protection of health and morals is equally permissible this is precisely what Section 377 does". The government claims an act that is technically unlawful cannot be rendered legitimate simply because it took place on a consensual basis. It goes on to say, "Section 377 has been applied to cases of assault where bodily harm is intended and deletion of the said section can well open the floodgates of delinquent behavior and be misconstrued as providing unbridled license for the same".
- The writ has been set for hearing in the Supreme Court of India on 6th^ March, 2009. The mooters shall prepare brief for the petitioner/NGO namely “voices for queer rights” and also the respondents namely the Union of India.