Union of India defends Section 377 - (7)

[Guest guest]

Proceedings continued on 20th October 2008 in the

matter of Naz Foundation (India) Trust v. Government of NCT, Delhi and Others,

Writ Petition (Civil) No. 7455 of 2001, before a division bench of Chief

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

{WARNING: long msg as arguments

went on for the entire day}

Additional Solicitor General (ASG) – PP Malhotra

continued with arguments in support of Section 377, Indian Penal Code

penalizing sodomy.

At the outset, the ASG said that as per Court instructions, he

will produce UN documents which clearly show that HIV is caused by sex between

males, between a man and a woman and through blood. Of these, he said that sex

between heterosexuals cannot be stopped. He asserted that the only way to avoid

HIV is to educate people about safer sex and “stop homosexuality”.

The ASG went on to say that both the petitioner and the respondent government

aim to prevent HIV. The question, he paraphrased, is whether decriminalization

will prevent or further aid HIV transmission.

Rejection of arguments under Article 15

The ASG reiterated that Section 377 is not hit by Article 15

of the Constitution as sex as a prohibited ground for discrimination does not

include sexual orientation. Further, he emphasized that all persons are prohibited

from committing “unnatural” sex and not just homosexuals. Therefore,

he contended, that the petitioner is wrong in alleging that the provision is

discriminatory.

Rejection of arguments under Article 19

No obstruction to speech

and expression

Next, the ASG sought to counter the petitioner’s claim

that Section 377 creates unreasonable restrictions on the right to speech and

expression. The ASG said that no one has been prevented from expressing their

views on homosexuality. He said that the petitioner has held many seminars,

conferences and parades to voice their opinion against Section 377. He contended

that anyone can canvass, including before Parliament but that does not mean

that the act be legitimized.

The ASG denied that Section 377 creates a culture of silence

on one’s sexuality. He alleged that this is a self proclaimed violation,

and that it is a disease. The Chief Justice demanded to know whether the ASG

believed that homosexuality is a disease. He said that neither the WHO nor any

other health agency considers homosexuality a disease.

In response, the ASG said that HIV is a disease; of which homosexual

practices are a major cause. The Chief Justice noted that the ASG had agitated

this point several times over. He further stated that while sex between men may

be a leading cause of HIV but homosexuality cannot be called a disease.

The ASG proceeded to respond to Judgments cited by the petitioner[1],[2]

but the Chief Justice stopped him by saying that the decisions merely

expound the scope of the fundamental right to freedom of speech and expression,

which is not a matter of dispute before the Court.

The ASG stated that the constitutional right to impart and

receive information is well accepted. He maintained that everyone has a right

to be informed about the danger of HIV but that is different from saying that the

petitioner has right to indulge in such acts. Expressing views is one thing,

committing an offence is another, he claimed. The ASG stressed that the decisions

cited do not advance the petitioner’s case.

Emphasizing the element of self-expression, Anand Grover, counsel

for petitioner, pressed the ASG to read the following para:

“Freedom of speech and expression is

necessary, for self expression which is an important means of free conscience

and self fulfillment. It enables people to contribute to debates on social and

moral issues. It is the best way to find a truest model of anything, since it

is only through it that the widest possible range of ideas can circulate. It is

the only vehicle of political discourse so essential to

democracy…..” [3]

The ASG conceded that there was no problem in anyone expressing

themselves but in his submission, fundamental freedoms under Article 19 are not

attracted at all in the present case. In the same vein, the ASG rejected arguments

raised by Respondent No. 8 – Voices against 377 that the impugned

provision - (i) prevents free and frank discussion, (ii) forbids expression

of sexuality and identity in public and, (iii) creates fear of prosecution for meetings

of LGBT persons

Next, the ASG replied to Respondent No. 8’s contention

that fundamental freedoms cannot be curtailed on grounds of morality. The ASG

argued that law reflects the views of society and Indian society considers

homosexuality as immoral. Referring to the US Supreme Court decisions of Lawrence[4]

and Bowers[5],

the ASG said that both reveal strong differences of opinion on homosexuality in

American society. Here, he said, we are dealing with Indian society, which

values morals. The ASG further contended that in the U.S, free speech cannot be

restricted but in India,

the Constitution itself recognizes legislative authority to limit personal

freedoms to maintain decency and public morality (Articles 19 (2) and (3)). Similarly,

he argued, Article 19 (4) and (5) allow restrictions in the interest of general

public. He submitted that Indian society does not approve of same sex activity.

The Chief Justice asked the ASG if he wished to read aloud the

dissenting opinion in Lawrence

in support of his contention. Since the dissent was long, the ASG offered to

mark it in his written submissions. On National Gay and Lesbian Coalition[6],

the ASG stuck to the stand that decision has no application as it is based on the

South African Constitution.

People’s will is to

criminalize homosexuality

The ASG then drew the Court’s attention to the seventh

schedule of the Constitution that lists out subjects on which the Parliament

and State legislatures can legislate. Pointing out to entries 1 {criminal law including IPC}, 2 {criminal procedure} and 3 {maintenance of public order} on the

concurrent list {areas where both Parliament

and State Legislature can make law} , the ASG said that so

far, none of the States have repealed or even contemplated repealing Section

377. He argued that State legislatures reflect the will of the people, which is

to retain proscriptions against sodomy. He pressed the Court to bear this fact

in mind. Homosexuality, he said, leads to perverse thoughts and ideas and that “it

is a perversity in itself.”

The ASG went on to cite the example of gambling, which,

despite being an offence, continues in homes, especially during festivals. He

said that if gambling is permitted, people will loose inhibition and vice will spread

on to the streets.

Reverting to the argument on consent, the ASG said that the

Transplantation of Human Organs Act, 1994 disallows organ transplant,

irrespective of consent. Similarly, he said, prostitution and gambling are not

condoned merely because the parties engage in it consensually.

Marriage laws will have

to change

Next, the ASG argued that recognizing homosexuality will

force the legislature to amend matrimonial laws. Referring to Section 13 (1) (i)

of the Hindu Marriage Act, 1955 (which makes adultery a ground for divorce),

the ASG argued that the words - “voluntary sexual intercourse with any person other than her/his spouse…”

will have to be modified if consensual sex between two men gains legal

recognition.

Thinking aloud, the Chief Justice said that if a husband has

sex with a woman other than his wife, she (the wife) has a right to seek

divorce, even though sex between a man and a woman is not a crime. He noted

that the same standard will apply if homosexuality is decriminalized. The Chief

Justice asked the ASG not to confuse criminal remedy with civil relief like

divorce.

Court must balance competing

interests

The ASG claimed that 99% of the population does not engage

in this and according to the UN, 0.3% are infected with AIDS, of which, several

are homosexual. He then said that what the Court has to consider is whether

permitting homosexuality will prevent or multiply AIDS?

The ASG went on to argue that fundamental rights are not

absolute and have to be balanced between competing interests. In this case, he

argued, the right of 0.3% or 0.1% of the population must be weighted against

the right of rest of society to protect itself from AIDS as sex between men is

the main mode of HIV transmission.

The ASG supplied a compilation of judgments on reasonable restrictions

on fundamental rights. Of the cases, he read out Bijay Cotton Mills v State of Ajmer (1955)

1 SCR 752, where the Supreme Court held that though every person can enter

into a contract for employment, the State can interfere with this right in

public interest, that is, to secure minimum wages for work. According to the

ASG, this ratio confirms that the legislature can restrict rights to protect

health and decency.

He went on to say that the petitioner wants consensual sex to

be allowed but later there will be controversy over the nature and manner of obtaining

consent. The ASG maintained that the “simple solution” proposed by

the petitioner is not possible.

More MSM, more HIV

The ASG again pleaded that lifting criminal sanctions

against homosexuality will endanger public health. He said that the petitioner

has admitted that MSM are vulnerable to HIV, for which the remedy is safer sex.

He conceded that people need to be educated about safer sex but that does not warrant

legalization of homosexuality.

He further argued that the petitioner’s concern over HIV

among MSM can be addressed by providing education. The ASG claimed that no one

is impairing efforts to prevent HIV. Casting doubt over the petitioner’s

intention, the ASG contended that the petition is more about “gay rights than

the AIDS programme”.

The ASG referred to a book titled “Sexually

Transmitted Diseases and AIDS” by Vinod K Sharma to highlight that 83% of

HIV cases in India

are sexually transmitted. Pointing out to the same article, Anand Grover

asserted that in India,

the epidemic is not attributed to same sex activity but heterosexual transmission

involving commercial sex. The ASG replied that HIV infection is rare in

monogamous couples but homosexuals are at high risk as they have multiple

sexual partners.

Next, the ASG alluded to efficiency of transmission and

argued that anal sex carries the highest risk. Elaborating the argument, he

said that anal sex causes tears and rupture of tissue because the “anus

and vagina are designed differently by nature”. The Chief Justice pointed

out from the document that mother to child transmission and exposure to

infected blood is the most efficient route of HIV transmission.

Responding to the ASG’s argument that the number of

partners is a cause of concern vis-à-vis HIV among MSM, the Chief

Justice said that the same holds true for heterosexuals as well though it is

not criminalized. The ASG replied that among heterosexuals, sex outside

marriage is punishable as adultery.

The Chief Justice directed the ASG to an acknowledgment in

the book that MSM are less likely to have access to HIV prevention services.

This, he noted, was consistent with NACO’s affidavit.

After lunch, the ASG read out extracts from the UNAIDS 2008

Report of the global AIDS epidemic[7] to

MSM are responsible for widespread HIV. He referred to statistics from all

regions - Africa, Asia, North America, Western Europe and Middle

East to press that sex between men is the leading cause of HIV.

At this stage, Anand Grover clarified that in every region,

epidemic has followed a different trajectory. He emphasized that in Asia and India, infection

is concentrated around injecting drug use and sex work, especially the latter,

with clients acting as a bridge to the general population. He also pointed out that

use of condoms is a critical factor in breaking transmission. Justice Murlidharan

took note of the Sonagachi example of condom use among Indian sex workers cited

in the report. The ASG said that condoms will be used only if there is

inhibition but the petitioner is seeking to remove all inhibition.

The Chief Justice asked the ASG to show if the UNAIDS report

supports criminalization as a strategy for prevention HIV among MSM. The ASG replied

that his submission was that MSM are the leading factor behind HIV all over the

world and that this activity results in infection, violence and disease, which

may even lead to death.

The Chief Justice directed the ASG towards sections of the

report that discuss the role of discrimination, prejudice, marginalization and

rights violations in aiding HIV infection among MSM.

The ASG said that he agreed that knowledge is a key factor

and therefore, people must be informed of the imminent risk of HIV in same sex

sexual activity.

Anand Grover drew the Court’s attention to a section

that acknowledged penal law as an impediment to effective prevention. He

explained that under the UNGASS Declaration on HIV, countries report on several

indicators, including on access to condoms for MSM. Grover pointed out that 38%

countries report that existence of anti-sodomy legislation is a barrier to

interventions with MSM.

The Chief Justice observed that the report commends repeal

of anti-sodomy laws as good political leadership on AIDS. The ASG replied that

in that case, Parliament may decide.

On the report’s findings and recommendations, the ASG

disagreed that MSM are marginalized as they constitute upto 42% of the HIV

infected population in some countries. The Chief Justice remarked that the term

“inclusion” is of importance

The Chief Justice said that there is no denying that male

– male sex is risky just as heterosexual sexual activity and injecting

drug use is.

Concluding his arguments, the ASG said that the question

before the Court is whether society’s right to protect itself supersedes

the rights that the petitioner is claiming. He contended that in deciding

a statute’s validity, the Court will have to look at its effect on

society and not just those agitating before it. Further, he argued that though

the petitioner is pleading consent, the Court must be careful, such as in

situations where sex is in exchange for money. Can the State permit male

prostitution, he asked? With this, the ASG closed the government’s

argument and agreed to file written submission at the earliest.

Summary of Union of India’s

arguments

The Chief Justice then summarized the respondent government’s

arguments in defending the constitutionality of Section 377:

Right to privacy can be

intruded upon to preserve heath, decency and morality (Article 21)

Law is not discriminatory as it

applies to all persons (Article 14)

Sexual orientation is not a

prohibited ground for discrimination (Article 15)

Causes no interference in

freedom of speech and expression (Article 19)

Right to health is the basis for

retaining Section 377, not repealing it (Article 21)

Legislative intent is clear and

must prevail (Article 14)

It is the legislature’s

prerogative to decriminalize homosexuality; Court cannot read down the law

Arguments by Respondent No. 7 - B.P Singhal

Thereafter, the Bench asked Mr HP Sharma to present his

arguments on behalf of Mr. B.P Singhal, who, he confirmed is a civil servant

and social worker and whose impleadment was accepted by an earlier bench as the

Court was keen to hear the “majority view” on the subject.

Adv. Sharma introduced his arguments as follows:

-

“Carnal” means

“fleshy” and not just anal intercourse

-

Unnatural” means anything

which is against nature, irrational or immoral. The question of consent does not

arise because it is not possible to agree to commit a “social

evil”.

-

Right to life means leading a meaningful

and healthy life; homosexuality is a kind of “slow, suicide” and

“bad for those who practice it.”

The Chief Justice questioned the source of documents relied by

Sharma, some of which were the same as those used by the ASG { R Diggs, Dr.

Lee Pock (?), Traditional Values Coalition}. The Bench once again criticized

the production of unscientific materials before the Court.

Sharma said that he would “pick holes” in NACO’s

affidavit on the following lines:

-

Makes no distinction between men who

voluntarily have sex with other men or for money (male sex workers). He claimed

that is sex between men is permitted, male prostitution will also be allowed.

The Chief Justice clarified that it may “grow” but not be

allowed.

-

If 36% MSM in India can use

condoms why not the rest of 64%?

-

Homosexuals have sex in public not

because of fear of law but because of disapproval by their families. Public sex

will continue even if the petition is allowed, he contended.

Next, Sharma said that he would argue in support of the

Ministry of Home’s affidavit that if Section 377 is repealed, it will cause

breach of peace, that is, break up of marriage and family. He claimed that by

permitting homosexuality will result in a flood of divorce cases. Further,

marriage between persons within prohibited degrees of relationship {concept in

Hindu Law, where intra-familial marriage is disallowed} will have to be

recognized as also incest. This, he argued, is because a constitutional ruling

will apply equally to criminal and civil law.

The Chief Justice questioned why he was pressing the issue

of marriage? Sharma replied that in India, marriage is of utmost importance

as we have not “imported all evils of the west”. The Chief Justice

remarked that the matter could be argued in a better way.

Sharma said he would rely on the Sakshi judgment {raising

the same arguments advanced by the ASG}. Pleading for a conservative approach, he

relied on Kailash v. State of Haryana

2004 CriLJ 310 {where the Punjab and Haryana

High Court upheld the sentence against the appellant convicted under Section

377} to discuss divergent legal opinion in England on abolition of

the offence of sodomy.

Sharma read out the following para:

“Prof H.LA Hart has examined in

details this doctrine ...in his book Law, Liberty and Morality (Stanford University

Press, California 1963) and has not approved Lord Devlin’s views.

However, we in this country should feel satisfied with principles Prof. Hart

has propounded deviating from Lord Devlin’s formulations rather than

blindly following the amendments made by the British Parliament. The practice

of adopting English laws is not always conducive to our own society and

therefore, we must rely on our own laws best suitable to our society and needs.

Various fundamental differences in both the societies must be realized by all

concern especially in the area of sexual offences. Naturally if the laws are

according to the temperament of a society to which it caters to and it is only

that society could be run smoothly according to laws because such a society

would then readily comply with those laws.” [8]

The Chief Justice asked him to produce the book referred to

in the abovementioned decision.

Thereafter, Sharma said that he would produce debates of the

constituent assembly to establish hat framers of the Indian Constitution intended

to cover “women” alone to prevent sex discrimination under Article

15. Further, he claimed that Fundamental Rights have to be read together with

Directive Principles such as Article 47 (State’s duty to improve public health).

Sharma continued giving an overview of his arguments. He

said that he would show how Courts have used the test of ordinary man of usual

prudence in criminal law. Referring to “unnatural death” under Section

40 of the Criminal Procedure Code, Sharma repeated that “unnatural”

sex is illogical and irrational.

He stated that if homosexuality is accepted, then the sex

ratio will further decline. The Chief Justice remarked that female foeticide has

nothing to do with homosexuality and that it is conservative Hindu beliefs that

make the girl child unwanted. Sharma said that recognizing homosexuality will

eventually “destroy the nation”. The Chief Justice instructed him

to argue on points of law and not political theories.

The Bench rose at 4.30 pm. The matter is scheduled on 6th

November at 10.30 am when the Court will hear Counsel representing Respondent

– JACK and the rejoinder by Anand Grover. Mr Sharma is expected to conclude

on 7th November 2008.

Tripti Tandon

Lawyers Collective HIV/AIDS Unit, India

www.lawyerscollective.org

[1]

Life Insurance Corporation of India

v. Prof. Manubhai Shah, (1992) 3 SCC 637

[2]

Secretary, Ministry of Information and

Broadcasting v. Cricket Association of Bengal,

(1995) 2 SCC 161

[3]

Supra 2 at page 213

[4]

Lawrence v. Texas,

539 U.S 558 (2003)

[5]

Bowers v. Hardwick, 478, US 186

(1986)

[6] National Coalition for Gay and Lesbian Equality and

Another v. Minister of Justice and Others, 1999 (1) SA 6 (CC)

[7]

http://www.unaids.org/en/KnowledgeCentre/HIVData/GlobalReport/2008/

[8]

Kailash v. State of Haryana 2004

CriLJ 310 at para 8