COMMITTEE HANDBOOK AND INFORMATION GUIDE
All India Political Parties Meet (AIPPM)
Section 377 of the Indian Constitution (Section 377 of the Indian Penal Code)
A fashionable but very crucial political debate in the country is on the legality and applicability of Section 377 of the Indian Constitution as it is also something that controls, atleast on paper, the criminality of non-natural ways of sexual interaction, including arguably, homosexual ways. India is growing out to have one of the largest LGBT communities in the world, with awareness of homosexuality spreading onto larger circles. But awareness, does not necessarily mean tolerance – and a lot of high profile Indians – including many on the roll of this meeting have spoken in favour of Section 377 and against homosexuality. Even more central to the agenda in context of AIPPM is party-policy as Political Parties are defining strong stands on the matter while avoiding angry confrontations with small but influential political groups.
Conduct and Language
In this section, we will elaborate on the procedure that will be followed in this council since this is a non-UN meeting. Largely, the procedure will remain the same, but there are some notable differences. We request delegates to be thorough with these points during councils: 1. Preferably, Hindi but even English shall be the official and working languages for the AIPPM session, at all points of time. 2. Delegates in the council should wear preferably Indian formals (that shall only be dhoti-kurta. Please note that kurta-pyjama will not be considered Indian formals). But even Western formals also avoided. 3. At the beginning of each session, the Executive Board will call on the Committee Members, in English alphabetical order to state their attendance. All Committee Members need to intimate the Executive Board of their presence, with a clear and coherent verbal declaration of 'Present'. 4. The usage of personal pronouns will be allowed. However, the language shall be strictly formal, in nature. It is mandatory for all the Committee Members, to vote on procedural matters. 5. Party flags can not be flown in council.
Debate
All the Committee Members will be invited to give their Introductory Statements. The default time period, for the same will be 90 seconds. A motion to extend the time period will not be in order. Committee Members are expected to list out their current Line of Policy and that of their political party, towards the Agenda at hand. The Member, granted the right to deliver the Introductory Statement, may yield after his/her speech in one of the three ways: Yield to Comments Such a yield can be used to invite comments from other fellow Members, on the Line of Policy, presented by the speaking Member. Yield to Points of Information/Questions The Executive Board, who has the right to call to order any Member whose question is rhetorical and/or not designated to elicit information, may select
questioners. Follow-up will be allowed only at the discretion of the Executive Board. Yield to the Chair Such a yield should be made if the Committee Member does not wish to yield to questions/comments by other Members. The Chair will then invite the next speaker, for delivering the Introductory Statement.
Members must declare any yield by the conclusion of his or her speech. If the time runs out, the Chair will simply move to the next speaker. Also, yields shall not be in operation during Subject Discussions.
Subject Discussions
Once the Introductory Statements have been successfully delivered, the floor shall be made open for motions, leading to Formal Discussions called Subject Discussions. This shall be used by the Committee members to debate/discuss specific subtopics under the broader agenda, subject to stipulated time limits and the strict moderation of the delegate who raised the subject discussion. Every proposal for a subject discussion must be accompanied by the specification of the Topic to be discussed under the slot, framed concisely and holistically. Every speech made during a Subject Discussion will be subject to a specific time limit, not exceeding 90 seconds, which is to be specified by the Member proposing the motion. Speeches made during the Subject Discussions are NOT open to questions or comments by other committee members. Committee members are requested to behave in a parliamentary way, and show of disagreement should be kept at a minimum.
Unmoderated Discussion
Un-moderated Discussions can be utilized by the Committee Members, from time to time, to informally discuss the matter (s) at hand within a specified time limit, not exceeding 20 minutes. The Un-moderated Discussion slots shall permit the Committee Members to leave their designated seats and lobby or discuss, as preferred, with other Committee members.
Motions
A “motion” is a unilateral proposal from a Committee member to facilitate, sustain and perpetuate the debate of the entire Committee, and subject to the vote of all Committee members. The following motions will be in order during the Committee: Motion to: ‘Set the agenda’: A motion to set the agenda is in order as the first motion during the opening session. A motion to set the agenda will be made and the delegate making the motion will state the topic area to be debated first. This motion requires a second. Once the motion has been made, a Provisional Speakers' List shall be established with two delegates speaking for and two delegates speaking against the motion. After the Provisional Speakers' List is exhausted, the Committee shall move into an immediate vote: A simple majority is required for the motion to pass. A motion to proceed to the second topic area is in order only after the Committee has adopted or rejected a resolution on the first topic area or debate has been adjourned. “Initiate a Subject Discussion”: Can be raised after the Introductory Remarks Session to discuss, under the strict moderation of the Executive Board, subtopics related to the agenda; the Committee member proposing the motion shall state the topic of the Moderated Discussion concisely along with the total time (cannot exceed 20 minutes) of the Discussion and the individual speaker’s time (cannot exceed 90 seconds); not debatable; can be passed by a simple majority. “Initiate a Unmoderated Discussion”: Can be raised any time after the Introductory Remarks session to informally discuss pressing issues related to the agenda, the future course of debate, topics missed out during debates, tactical strategies, lobbying, etc. without the supervision of the Executive Board; the Committee member proposing the motion shall state the total time (cannot exceed 20 minutes) of the Unmoderated Discussion; not debatable; can be passed by a simple majority. “Motion to create a Provisional Speakers' List”: raised during the course of debate, at any point of time, to open a Provisional List for elaborate discussion on a specific development or Document; can be passed by a simple majority. The speakers in the Provisional Speakers' List will be open to yields.
“Motion to suspend meeting for lunch/tea break”: raised to temporarily halt committee proceedings for the purpose of breaking into recess; not debatable; can be passed by a simple majority. “Motion to adjourn meeting”: raised at the end of Committee proceedings so as to postpone the meeting to a later date; not debatable, can be passed by a simple majority.
Points
A “point” is an exclusive entitlement or privilege given to every Committee member for his or her procedural and substantive convenience, not subject to any Committee vote. All the points mentioned in this document can be communicated to the Executive Board verbally or in writing, if a verbal communication is not in order. Also, a Point to another Point is invalid. The following points will be in order during Committee discussions: Point of Personal Privilege: To be used by Committee members to apprise the Executive Board of any physical inconvenience or audibility issues. Point of Inquiry: To be used by Committee members to clarify procedural and substantive doubts with the Executive Board at any point of time. During Moderated Discussions, Points of Inquiry will be acknowledged only in writing to the Executive Board. Point of Order: To be used by Committee members for the following purposes: i. ii. iii.
To point out a procedural error made by the Executive Board, vis-à-vis the stipulated Code of Conduct. ii. To point out a factual error made by a Committee member during his or her speech. iii. To point out a factual error in a Committee documen t, which is undergoing discussions for further voting.
Point of Information: To be used by Committee members to ask questions to other members who have just made their Introductory Statements or speech during the Provisional Spea kers' List.
Committee Documentation Resolution: A written, Document, which is a set of Operative Clauses. Requires at least one sponsor and three signatories, to be considered. Dissent Notes: If any particular Member, or party is in disagreement with a specific clause of the Resolution, it may issue a 'Dissent Note' in writing, addressed to the Execu tive Board. Communiqué: An official declaration or announcement in writing, non-binding in nature, which is drafted in joint consensus of the entire Committee and is passed without a formal vote. A communiqué is a more informal and non-binding alternative to a resolution, intended for common understanding of Committee and press members. Written Statements: Written statements shall be used to apprise the Executive Board, of any Policy Line, that could not be done through speeches, due to the limited time available. The Executive Board may read out the statement to the Committee, if it deems fit to do so. Press Statements: Statements, either written or in verbal, directly to the national press.
Press Conferences
Parties can hold their own press conferences during committee breaks but will have to inform the national press, the Chairperson and the Secretariat in advance.
What is Section 377?
The following is the text from the Indian Penal Code:
377. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.
It is important to note here that, the ambit of Section 377, extends to any sexual union involving penile insertion. Thus, even consensual heterosexual acts such as fellatio and anal penetration may be punishable under this law.
Note from the Executive Board
Delegates are advised here, that as political figures in this committee, their opinions, even if deliberately pretending to be illinformed or uncivil, are encouraged in simulation of a political parties meeting. It is also very important to understand that apart from certain committee members, the delegates are free to lack legal depth on Section 377 and individual interpretations, especially tangential to the public opinions of the characters/personalities they are representing are allowed. But before we start pretending to be ignorant o r uncivil, it is crucial to understand in depth, and with civility, what the legal and humanitarian debate around Section 377 is all about …?
Homosexuality in India
If we roughly include those people who live in the fear of discrimination and inside the closet, there may be well over 600 million gay people in India by some estimates. But those who’ve publicly declared to the Ministry of Health remain at 2.7 million. To map the LGBT demographic in India is a very tough task. There are many websites in India which cater to gay, lesbian, bisexual and transgender communities and many people are registered and actively communicate, interact, and counsel each other through these sites. According to a popular gay dating website, which has about 1.8 million men registered from around the world, India has about 140,000 individual males registered, a figure more than Western countries like the USA (46,645) and the UK (41,021) and ranks 3rd on the list of people registered from a country; nearly 80% of them are in the 15-30 age range with the highest numbers registered in states of Maharashtra (25,564), Tamil Nadu (16,380), Karnataka (14,763) and Delhi (13,441), while cities with the high est numbers are New Delhi (13,391), Mumbai (11,001), Hyderabad (10,273) and Bangalore (8,000). With the Supreme Court, reading down a previous High Court judgment (refer to case Naz Foundation v. Govt. of NCT of Delhi), turning the clock back to make gay sex illegal in India, there was a huge civil furor among LGBT enthusiast – mostly coming from the point of view that the right to choose and right to love are fundamental human rights being denied by the Supreme Court and that Section 377 is intrusive on privacy, besides being a regressive law in comparison to other countries in the world that have even legalized gay marriages. Homophobia is what constitutes the other side of the debate. Some estimates say that over 96.7 percent of Indians are homophobic – or at least consider homosexuality an unnatural aberration – instead of being a natural (read physiological) behavior. Religion, and political parties with religious roots, are also intricately involved in this debate as many Hinduists have publicly opined that homosexuality is a disease or an ailment. Notoriously famous is Ramdev Baba who said that he can cure homosexuality with yoga; and this one from Solicitor General PP Malhotra:
“Homosexuality is a social vice and the state has the power to contain it. [Decriminalising homosexuality] may create [a] breach of peace. If it is allowed then [the] evil of AIDS
and HIV would further spread and harm the people. It would lead to a big health hazard and degrade moral values of society." A view similarly shared by the Home Ministry” For civil society and government alike, homosexuality is a taboo topic and even the judiciary has deferred to the Indian legislators to provide more sought-after clarity on the subject.
Section 377 of the Indian Penal Code
Lacking precise definition, Section 377 became subject to varied judicial interpretation over the years. Initially covering only anal sex, it later included oral sex and still later, read to cover penile penetration of other artificial orifices like between the thighs or folded palms. The law made consent and age of the person irrelevant by imposing a blanket prohibition on all penile-non-vaginal sexual acts under the vague rubr ic of ‘unnatural offences’ Though ostensibly applicable to heterosexuals and homosexuals, Section 377 acted as a complete prohibition on the penetrative sexual acts engaged in by homosexual men, thereby criminalizing their sexual expression and identity. Besides, the society too identified the proscribed acts with the homosexual men, and the criminalization had a severe impact on their dignity and self-worth. Section 377 was used as a tool by the police to harass, extort and blackmail homosexual men and prevented them from seeking legal protection from violence; for fear that they would themselves be penalized for sodomy. The stigma and prejudice created and perpetuated a culture of silence around homosexuality and resulted in denial and rejection at home along with discrimination in workplaces and public spaces. The Naz Foundation (India) Trust, a Delhi-based non-governmental organization and working in the field of HIV prevention amongst homosexuals and other men having sex with men (MSM), realised that Section 377, IPC constituted one of the biggest impediments in access to health services for MSM. MSM remained a hidden population due to fear of prosecution under the law. Through its interactions with clients, Naz Foundation became acutely aware of the disproportionate and invidious impact of Section 377 on homosexuals.
The following is the written petition in the Delhi High Court
Naz Foundation (India) Trust v. Government of NCT of Delhi and Ors. [Writ Petition (Civil) No. 4755 of 2001] In 2001, Lawyers Collective, on behalf of Naz Foundation (India) Trust, filed a writ petition in Delhi High Court challenging the constitutionality of Section 377 on grounds of violation of right to privacy, dignity and health under Article 21, equal protection of law and non-discrimination under Articles 14 and 15 and freedom of expression under Article 19 of the Constitution. Notice was issued to Union of India in 2002 and the Attorney General was asked to appear. The Ministry of Home Affairs filed an affidavit opposing the petition in September, 2003. The petition was dismissed by the High Court on 02.09.2004 for lack of cause of action as no prosecution was pending against the petitioner. The Petitioner filed a review petition (RP 384/2004) in the High Court against the order of dismissal but that too was dismissed on 03.11.2004. Aggrieved by the same, the Petitioner filed a Special Leave to Appeal (C.N. 7217-18/2005) in the Supreme Court of India in 2005. On 03.02.2006, the Supreme Court passed an order holding that “the matter does require consideration and is not of a nature which could have been dismissed on the ground afore-stated”. Remitting the matter back to the High Court of Delhi to be decided on merits, the Supreme Court set aside the said order of the High Court. Subsequently, the Ministry of Health and Family Welfare through National AIDS Control Organisation (NACO) submitted an affidavit in support of the petition in the High Court contending that Section 377 acted as an impediment to HIV prevention efforts in July, 2006. Thereafter, the final arguments in the matter ensued in November, 2008 before the division bench of Chief Justice of Delhi High Court A.P. Shah and Justice S. Muralidhar. On 02.07.2009, the Delhi High Court passed a landmark judgment holding Section 377 to be violative of Articles 21, 14 and 15 of the Constitution, insofar as it criminalised consensual sexual acts of adults in private.
You can read the complete judgment by following this link: http://www.lawyerscollective.org/files/Naz%20Foundation%20Jud gement.pdf
Supreme Court Proceedings
Following the High Court decision, 15 Special Leave Petitions (SLPs) were filed in the Supreme Court appealing against the said decision on behalf of mostly faith-based and religious groups from all parts of India. 7 intervention applications (I.A.s) were also filed; out of which, 5 I.A.s were in support of the High Court judgment while 2 I.A.s were against the decision. Importantly, the Union of India did not appeal against the judgment and the Supreme Court too did not grant a stay on the operation of the same. In February, 2012, final arguments began in this matter before the division bench of Justice G.S. Singhvi and Justice S.J. Mukhopadhyay and continued till the end of March, 2012. Mr. Anand Grover, Senior Advocate and Director, Lawyers Collective argued on behalf of Naz Foundation (India) Trust and defended the Delhi High Court decision.
However, On 11 December 2013, the Supreme Court of India ruled homosexuality to be a criminal offence setting aside the 2009 judgement given by the Delhi High Court. In its judgment the Supreme court bench of justices G. S. Singhvi and S. J. Mukhopadhaya stated — “
In view of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.”
Read that full judgment here: http://judis.nic.in/supremecourt/imgs1.aspx?filename=41070
What will AIPPM do about Section 377?
All personalities you are representing have their own opinions about the Supreme Court Section 377 ruling. Not all of them are deeply legal, since many of your representations may be legally unsound. Some politicians in this committee may have a religious take, while some other may have a political take, while some may have no take at all and may try to diplomatically avoid the topic. The idea of this council is to ingrain the public opinion of the personality you are representing and then present that viewpoint, to both closely understand how political parties in India function, and how the dominant view of a party (whether it’s religious or political) are carried by all members. Yes, we will follow a procedure in the council, but you’re free to make extra procedural comments, stand in council, simulate the energy of the character you’re representing, as you’ll be marked for being really close to the political personality you’re representing. Remember even as the agenda is on Section 377, there is nothing a political parties meeting can do about it – only form and disseminate opinions. The Supreme Court and the Parliament has the power to amend or make a judgment about Section 377. AIPPM is a meeting which is only there to consolidate opinions and talk to the press. In this council, we hope to see a simulation of the very dynamic of Indian politics. To some extent, yes, even throwing papers or talking angrily are allowed, but delegates should keep in mind that we are not there to cause inconvenience to the school, the staff or the Secretariat. Your language, way of speaking, conduct, opinion and its overlays with real world opinion of that personality you’re representing – and your contribution to debate at large – are all part of our marking criteria. We have made this council to feel closer to the very evils that grapples our political system, because unless we see them up and close, we cannot defeat them. So even if you’re representing a Shiv Sena representative screaming in council that homosexuals are social evils – you have to remember that you’re only acting, infact, to know and understand how we strike impasses in our political functioning, so that when we grow up, we can make a difference.
Best wishes Hisham Ahmed Rizvi Chairperson, AIPPM
