Union of India defends Section 377 -(3)

[Guest guest]

A division bench of Chief Justice

A.P Shah and Justice Murlidharan of the Delhi High Court continued to hear

arguments in the matter of Naz Foundation

(India) Trust v. Government of NCT, Delhi and Others, Writ Petition

(Civil) No. 7455 of 2001, which challenges the constitutional validity of

Section 377, Indian Penal Code, 1860 (IPC).

On 30th September 2008,

the Additional Solicitor General (ASG) – PP Malhotra, sought to counter the

petitioner’s claim that Section 377 infringes the right to life and liberty

under Article 21.

Relying on Kharak Singh[1],

Gobind v State of Madhya Pradesh[2] and

A.K Gopalan[3], the

ASG attempted to argue that the petitioner’s challenge under Article 21 is

not sustainable as Section 377 is a valid law.{According

to these decisions, restrictions on Article 21 cannot be challenged if imposed

by a validly enacted law.} Rejecting the submission, the Bench said

that this principle has been overruled by Maneka Gandhi[4] and

subsequent pronouncements of the Supreme Court. Drawing the ASG’s

attention to a settled position in constitutional law, the Chief Justice said

that the impugned law itself must be fair, just and reasonable to withstand the

rigours of Article 21.

Second, the ASG argued that the

right to privacy is not absolute and can be curtailed in favour of a competing

interest. He cited HIV related judgments - Lucy D’Souza[5],

Singareni Collairies[6] and

Mr X v Hospital Z[7] to press

that fundamental rights of people living with HIV can be abridged to protect

others. The Chief Justice pointed out that this line of thinking is outmoded;

though Courts have permitted mandatory HIV testing, the Indian Government has

rejected such measures. Justice Murlidharan further questioned the relevance of

these decisions to the present matter which challenges criminal sanctions

against consenting adults.

Third, the ASG argued that permitting

sex between men will result in HIV transmission and be detrimental to public

health. The Bench refused to agree with a “mere oral submission”

and asked the ASG to place material on record to show that decriminalization of

homosexuality enhances risk of HIV infection.

The Bench advised the ASG to advance

other arguments, especially on whether public morality is a compelling state

interest in prohibiting homosexuality. Justice Murlidharan reminded the ASG

that, so far, he had not responded to arguments on dignity under Article 21.

Next the ASG sought to argue that Section

377 is unambiguous in its language and intent, and therefore, the Court could

not go into the question of interpretation. The Bench clarified that the petitioners

are not disputing the aim or scope of Section 377. Instead, they have argued

that its application to private, adult consensual sex is unconstitutional. The

ASG agreed not to press arguments on statutory interpretation.

The Bench rose at 1.10 pm. The

hearing will resume on 1st October 2008 at 10.30 am or, in the event

of a public holiday, on 3rd October at the same time.

Tripti Tandon

Lawyers Collective HIV/AIDS Unit

www.lawyerscollective.org

[1]

Kharak Singh v State of Uttar Pradesh (1964) 1 SCR 332

[2]

Gobind v. State of Madhya Pradesh (1975) 2SCC 148

[3]

A.K Gopalan v. State of Madras

[4]

Maneka Gandhi v. Union of India,

AIR 1978 SC 597

[5]

Lucy D’Souza v State of Goa AIR 1990

Bom 355

[6]

Vijaya v. Chairman and Managing Director,

Singareni Collieries Ltd AIR 2001 A.P 502

[7]

Mr X v. Hospital Z